Complainant

Respondent

Anonymised Parties

A Nurse

A Government Body

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00029523-001

08/07/2019

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

CA-00022312-001

02/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00023069-001

06/11/2018

The complainant contends that she has been discriminated against by the respondent by virtue of its failure to provide her with reasonable accommodation in respect of a disability that limits her driving ability to twenty minutes at a time and consequently get from her home to her workplace.

In 2001, the complainant redeployed from a General Hospital in the county town to the role of a CRGN working in the Public Health Nursing Service, as part of a Primary Care Team based in a small town in the county. In April 2018, she went off work on certified sick leave.

In June 2018, an Occupational Health (OH) referral was completed and the complainant attended for this assessment. The report from the OH of that date outlined the complainant’s medical condition and advised that a phased return to work be facilitated. The complainant was also under the care of her consultant during this period. The complainant provided a medical certificate from her GP to state she was fit to return to work on the 16th July 2019 and sought reasonable accommodation, namely a role that was based at a location no more than 20 minutes from her home.

A number of meetings were held with HSE management and her union representative over the course of the summer to discuss the medical reports and to explore options. One option, a vacant position of CRGN in another town in the county, was offered but was refused as it would require more than 20 minutes driving time from her home. It was also highlighted that there was no risk assessment, or any medical examination carried out by the HSE which called into question the complainant’s assertion that she could only drive for 20 minutes at a time, which was highlighted in a report from an Occupational Health nurse of 10th August 2018

Despite ongoing communication between the complainant’s union and the respondent over the latter half of 2018, there were no suitable alternatives proposed to the complainant. It was also highlighted that there was a three-day floating position available in another town, which was not offered to her. Further engagement between the respondent and the complainant took place in October and November 2018 which resulted in a number of other offers being made, all of which were unsuitable and were therefore refused. These included a temporary position in the minor injuries unit in another town, which she was unwilling to take up because the respondent was unable to provide a reasonable certainty of guarantee around it, as well as another alternative position, which she refused because it involved one hours’ travel each way.

It was also claimed that the complainant has been victimised for opposing discrimination through the respondent’s intransigence in providing her with reasonable accommodation. Finally, it was alleged that the respondent did not engage with the complainant when she was fit to return to work and failed to advise her of the various options in respect of additional entitlements under the various HSE schemes as it was contended that her sick pay should have been extended on compassionate grounds.

The respondent stated that the complainant works as a CRGN which is a member of the Public

Health Nursing team and carries a clinical caseload which includes adults and older persons,

persons of all ages with disabilities who require clinical nursing, clients with an acute,

chronic or terminal illness.   It stated that driving is an essential requirement of this role in order to

undertake visits to persons living in the community in their own homes, sometimes in remote

areas.

Further to going on sick leave in April 2018, an Occupational Health (OH) referral was completed for the complainant on 25th June 2018.   The report from the OH outlined the complainant’s medical condition and suggested a phased return to work over a period of 4-6 weeks by the end of which she would be able to return to her normal contracted hours.

A meeting was held on the 13th July 2018 between the respondent and the complainant at which temporary redeployment options were explored. Within the limitations outlined in the Occupational Health Report, no suitable position or accommodation could be identified. The respondent pointed out that at this meeting, the complainant provided a G.P. medical certificate to state she was fit to return to work, three days later on the 16th July 2019. It was highlighted that this medical certificate did not stipulate any adjustments required to facilitate a return to work or make any reference to a twenty minute driving limitation.

Further to this meeting, on 31st July 2018, the complainant submitted a copy of a letter from her Consultant Neurosurgeon which stated that her condition had improved.   The letter also stated that that if she could reduce the amount of driving, then she would be fit enough to return to work.

A further meeting was held on 2nd August 2018 where options for alternative accommodation / duties were explored. In addition, there was ongoing engagement with the complainant and her union representative over the fourth quarter of 2018 as well as in the first quarter of 2019 and a number of alternative roles were offered to her, all of which were refused.

The respondent also stated that the complainant requested that she be accommodated with a CRGN position in a particular catchment area but claimed that no vacant positions were available in this area and that no existing CRGNs were seeking to transfer from there.

The respondent claimed that the complainant was not victimised and highlighted the range of options made available to her. It was also stated that the various HSE sick pay schemes which would have allowed for the complainant’s sick pay to be extended are entirely discretionary and are ordinarily payable where certain medical criteria are met.

The respondent also highlighted that they were prepared to engage with the complainant when she declared herself fit to work but were instructed to engage only through her trade union official. Finally, it was stated that the respondent failed to invoke the grievance procedure to highlight her concerns.

In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states:

"Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."

This means that the complainant must establish primary facts upon which the claim of discrimination is grounded, prior to the burden of proof passing to the respondent.

The central tenet of the complainant’s case is that, because of her disability, she is only able to drive for 20 minutes at a time which means that she could no longer travel to and from her previous base and should be accommodated by the respondent with a role no more than 20 minutes driving distance from her home. Her assertion that she could only drive for 20 minutes at a time was supported by correspondence from the Occupational Health Specialist on 10th August 2018 and was never challenged by the respondent, prior to the hearing. Specifically, the complainant was never asked by the respondent to attend a medical exam to assess how far she would be able to drive and if in fact she could not drive for more than 20 minutes in the morning.

While it was acknowledged by the complainant that a number of alternatives were presented to her, she claimed that all of these were refused either because they involved a drive of more than 20 minutes from her home or were unsuitable because of the nature of the roles.

I find that, notwithstanding the respondent’s failure to arrange a medical examination to challenge the complainant’s assertion that she could only drive for 20 minutes at a time, I conclude that getting to and from work was the complainant's responsibility. I therefore find that the complainant has not established a prima facie case, either prior to the first claim being filed on 6th November 2018 or between then and 8th July 2019 when her second claim was filed. Accordingly, her claim for discrimination cannot succeed.

I am also satisfied that she was not victimised for opposing discrimination through the respondent’s alleged intransigence, given the number and variety of alternatives for a return to work that were presented to her by the respondent.

I am also of the view that the respondent did not treat the complainant unfairly by not putting her on any of the discretionary sick pay schemes and note that she failed to invoke the body’s grievance procedure in this regard.

CA-00029523-001: I find that this complaint does not succeed.

CA-00022312-001: I cannot make a recommendation favourable to the complainant regarding this complaint.

CA-00023069-001: I find that this complaint does not succeed.

Travel from home;