Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Anne Burke Irish Nurses and Midwives Organisation

Ronnie Lawless IBEC West

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029211-001

21/06/2019

The dispute is concerned with the decision of the employer on 21 February 2019,which had the effect of putting the employee off the payroll on unpaid sick leave with immediate effect. The decision of the employer followed a report from Occupational Health who advised that the employee was not fit for her work. This situation continued until March 2019 when an independent medical assessor declared the employee fit for work. The employer did pay for hours following the assessment of March 20th when there was a delay in receiving the report and returning the employee to work. The disputed payment is in respect of hours which the employee would otherwise have worked in the period 21 February to 20 March and related claims for compensation.

In 2018,the employee was on certified sick leave from June 20th to October 8th.

On October 8th the employer wrote to the employee advising that she was expected to return to work in the coming weeks, on short hours.

On October 30th the employee returned to reduced hours working with a colleague providing cover for the half of the normal roster.

On November 5th a further assessment by Occupational Health indicated that light duties should continue.

On November 25th the employee resumed full time working for one full shift followed by two short shifts.

On December 13th there was a telephone call between the employee and the Occ. Health Assessor following which he advised that the employee could return to full time working in her unit , following the completion of manual handling training which he also deemed her fit to complete and which was arranged for December 27th, 2018.

On 15 January 2019,the employee reported health concerns to the employer . The employee was on annual leave and did not work from January 18th to February 1st.

An Occupational Health Assessment report on January 21st described the employee as fit for work but not in her normal unit.

A report for her GP dated February 8th certified the employee fit for light duties.

The dates listed are taken from the two submissions at the hearing.

On 18 February 2019 the employee attended an Occupational Health Assessment and without any prior indication from the assessor on the day, was deemed by him to be unfit for work in her role in her unit. She began to realise there was an issue when she saw management looking for cover for her hours due to sick leave through the staff what’s app group. On February 21st she received a letter from management telling her she was deemed unfit to work at her normal duties. On 28th February her own GP certified her fit for light duties only. The INMO wrote to the employee’s senior line manager on February 22nd seeking a meeting. A written response setting out the history of the situation was received from the line manager on February 26th . That response referred to no employment being available in other areas and referring to the option of availing of an independent medical report. A meeting took place and it was agreed that the independent medical review would be arranged. That review took place on March 20th at which time the employee was deemed fully fit to attend for her role in the employment. Compensation for loss of earnings ,plus money to repay a loan which the employee was forced to obtain to cover her financial situation together with the number of hours the employee lost when off the payroll were all sought by way of a resolution. The union contended that what happened in this case was a maladministration of the sick pay scheme. A data access request had revealed a meeting between the Occ. Health Adviser and management prior to the assessment of February 18th;within weeks of the assessment of occupational health, the employee was deemed to be fully fit; a wholly unsuitable alternative role was offered to the employee in March-one for which she was not qualified; the attendance management policy was amended around the time of the events in February; an issue with the contents of a report of January was described as a breach of GDPR; decisions regarding placement of the employee in an appropriate role including light duties should have been made by line managers and not HR; internal correspondence between managers contained highly prejudicial comments regarding her long term employment prospects. The gesture of good will as the employer described the payment for hours between 20th and 28th March was rejected by the employee as paltry.

The relevant dates are as listed above. The employer rejected the claim in its entirety. When the employee returned to duty she reported feeling sore on different dates which resulted in referrals to occupational health. Following the receipt of the Occ. Health Report in February, an admin post was offered to the employee on March 6th-to which she had replied she wanted a post which was grade to grade. Following the representations by the union, 48 hours were paid to the employee to cover the period from the date of the independent assessment and her return to work. Every effort was made to accommodate the employee through short shifts and additional assistance. At the hearing the senior line manager stated that this is a small employment and it was difficult to provide the cover for the period of short time working on an ongoing basis. She also stated that there was no suitable alternative work for the employee on a grade for grade basis available at that time. The meeting with Occupational Health referenced in an email and in the employees submission was the occasion when the Occ. Health Adviser visited the employment and assessed the employees place of work to see what the work entailed. Regarding her losses, extension of the sick pay scheme was not justified, the employee was advised by the employer to seek the necessary certification from her own GP to enable her to claim disability benefit.

At the outset it is important to stress that this is not a complaint of discrimination on grounds of disability with an attendant complaint regarding a failure to provide a reasonable accommodation. This claim is based on an alleged maladministration of the terms of the sick pay/attendance scheme in the employment and the consequent removal of the employee from the payroll due to the way the scheme/s were administered in February March 2019.

As a dispute regarding the refusal to extend the terms of the payment of disability benefit beyond six months and/or a refusal to continue to facilitate the employee through a shorter attendance pattern, I consider the position of the employee to be unreasonable given the terms of the scheme and the earlier arrangements to facilitate her with shorter hours, neither of which she appears to recognise as positive benefits which gave her the opportunity to recover from her disability.

Much of the employee’s case is based on information gleaned from the disclosure of internal hospital records after she was informed that because of the Occupational Health Report of February, she was deemed unfit for work. Accepting that the diagnosis of the Occupation Physician came as a shock to the employee, in terms of the claim to the WRC, the following are the key facts:

The employee had exhausted the terms of the sick pay scheme;

The employee was unable to work her contract hours or to perform the full range of duties of her position for more than a few days between October 2018 and January 2019 when she was available for work;

It was the employees own reports of recurring medical symptoms which resulted in each referral back to the Occupational Health Adviser;

The employee, on her own admission at the hearing, chose not to make a claim for disability benefit as it would interfere with or affect her dispute with her employer. Thus, the employee failed to take steps to offset her financial losses. There was no reason for her to obtain a fit for light duties cert from her GP in February and if anything, it may have denied her the entitlement to social welfare benefits-but this is not the responsibility of the employer in this instance;

In consideration of representations made on her behalf the did receive a payment for time lost after the independent medical report was issued to the employer-which the employee seems to dismiss as of any value although such delays do occur and are not always recompensed by the employer who in this instance did not receive the report until a week after the assessment.

In addition to the forgoing facts which are considered relevant in deciding whether there is merit in the claim, the repeated references by the representative to the role of HR in making decisions rather than clinical nurse management suggesting that a different decision might or would have been taken if the matter was left with nurse management is not accepted as valid. HR in the employment has a certain role in decision making in the application of the employer/employee policies ;it is clear that the HR Manager in this case had consulted with the appropriate line manager and from the hearing, it is also evident that the senior nurse manager did not have an alternative role in which to place the employee and was experiencing difficulty in managing the previous short time solution.

Regarding he amendment to the attendance management scheme in the employment-having reviewed the amended version, it does now provide for an employee to be accommodated on light duties in the unit to which the employee was assigned but that had occurred previously and still there was a recurring physical problem being reported by the employee despite taking an extended period of leave in January/February.

Regarding the assessment and meeting between management and the Occupational Health Adviser in February, it is perfectly usual for the HR function in an employment to have a discussion with an Occupational Health Adviser where there are concerns about an employee’s ongoing health including fitness for work. The medical assessment takes place in a workplace context and factors from that context can be relevant for consideration and from time to time they explain the reason for the referral in the first instance. When an employee is repeatedly raising issues regarding her health, such discussions are inevitable. In the circumstances of this case the visit by the Occupational Health Assessor to the unit in question should be viewed as him doing his job and taking the context of the employee’s job into account. However, and this is the one point on which the employee can legitimately complain, even where there is an input from management, perhaps most particularly where there is an input from management ,there is an onus to place that information before the employee hear her opinion and essentially to discuss the assessment of her workplace with her at the time of assessment. In this instance the employee was caught completely by surprise by the decision both of the Occ. Health Assessor and the employer and did not learn of the workplace assessment until the hearing of this dispute at the WRC. The conclusion on this point is that the treatment of the employee by Occupational Health was unequal as between the employee and management at a critical juncture with adverse consequences for the employee. And there is quite simply no way in which her line manager acting on the medical assessment from occupational Health and by extension her colleagues, should have known about her being off work completely before the employee or at least after reasonable efforts were made to contact her personally.

In consideration of all the forgoing conclusions, payment for two additional 12 hours shifts is recommended to settle this dispute. This is in effect payment for the two days which the claimant would have been rostered in the week following the Occupational Health assessment. The claims for additional compensation are not justified.

I recommend that this dispute be settled by payment to the employee of 24 hours normal pay in addition to the payment already received and acceptance by her in writing that with this additional payment, she will regard the dispute as settled.