Complainant

Respondent

Anonymised Parties

Specialist Staff Nurse

Health Care Provider

Representatives

Wesley Hudson Hudson Solicitors

Cliona Kenny, Solicitor 

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-00027676-001

11/04/2019

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

CA-00027797-001

16/04/2019

In 2013 the Complainant completed a four-year degree in her chosen area of Nursing. Thereafter the Complainant worked in a private hospital for approximately 1 year and 4 months, following which the Complainant worked at a specialist Hospital where she was sponsored to complete a Higher Diploma in her chosen field. From January 2017 until her employment by the Respondent the Complainant worked at a specialist Hospital.

In February 2018the Complainant applied for a position with the Respondent, which she had seen advertised on their website.

On 26 March 2018 the Complainant was offered an interview by email, to take place on 5 April 2018.

Following the interview the Complainant received an email from the HR Department of the Respondent, dated 17 April 2018, which stated:

…I am pleased to inform you that you have been placed number 2 on a panel which has been formed following your interview.

I am pleased to inform you that I am now in a position to commence clearances for the post of permanent with the Respondent. A clearances pack will be sent to you in the coming week…

Please note the following:

Any offer is subject to receipt of all satisfactory clearances – Garda Vetting, Occupational Health… Only on completion and receipt of Garda Vetting and all other mandatory clearances can a permanent staff nurse contract be issued…

It is Nurse Administration who makes the assignment/agrees contract hours. You can discuss these with the assigned Directorate Nurse Manager / line manager when agreeing your start date.

Standard hours for Staff Nurse posts are 39 hours, reduced hours are dependent on service needs and at the discretion of Nursing Admin – you will appreciate that the nursing service runs 24/7 and staff nurses are required to work whole time rosters; part-time hours cannot be guaranteed and depend on existing Healthcare Provider staff and service needs.

On the 19 April 2018, the Complainant also received correspondence from the Recruitment Department enclosing documentation which was to be completed. Included in the documentation was an Occupational Health Questionnaire. The Complainant duly completed all the relevant documentation and returned same by registered post 23 April 2018. In the Occupational Health Questionnaire the Complainant indicated that she would be unable to undertake night-shift duties.

On 28 June 2018 the Complainant attended Occupational Health where she completed a questionnaire, prior to meeting with same and underwent a medical examination. In the course of this meeting the Complainant, again, explained that she would “be unable to undertake night duty owing to a medical condition”.

As at 9 July 2018 the Respondent was in receipt of the Complainant’s Medical Assessment and Fitness Certificate. The Fitness Certificate clearly states, “the above employee is unfit for night work due to a medical condition”.

On 18 July 2018 the Complainant received confirmation from the Occupational Health Department that the Medical Assessment and Fitness Certificate had been forwarded to the “recruitment department”.

In July 2018 the Complainant received a phone call from the Assistant Director of Nursing. The Complainant was told where to go on her first day and was informed that her first week was orientation and would be Monday to Friday

On 2 August 2018 the HR Department wrote to the Complainant by letter stating:

Commencement Date

Your employment with the Healthcare Provider will commence on 10.09.2018…

On foot of the offer letter dated 3 August 2018 the Complainant formally handed in her notice to her current employer and then began preparations to move for her new position; which involved several trips, for relocations purposes and relocating her personal possessions and belongings.

On 5 September 2018 the HR Department emailed the Complainant stating:

…I refer to my letter dated 2 August 2018 offering you the above position. It has come to my attention that the Occupational Health report states you are unfit for night work due to a medical condition.

I have discussed the issue with... [the]… Director of HR and under the circumstances we are not in a position to proceed with the offer. This role requires employees to work the agreed roster which includes night duty…

The Complainant was offered a position with the Respondent subject to Occupational Health assessment.  The complainant stated she was initially drawn to apply for the position with the said entity, as the position was advertised as having flexible working hours; which was compatible with the Complainant’s requirements.  The Complainant went through various stages of an interview process and was ultimately offered the position; however, according to the Complainant, no mention was made of the Complainant having to work night shifts, by said entity; which was what drew the Complainant to the position, in the first instance. 

The Complainant attended a Medical as part of the process and confirmed to that Doctor she had a Cert from her own Doctor to confirm she was unable to work nights due to medical grounds. This was recorded in the medical assessment.

The Complainant on foot of a job, resigned from her position, at the time and accepted the position with the Respondent and some two days, prior to the Complainants intended start date; a representative of the Respondent contacted the Complainant and advised her that they could no longer offer the Complainant the position, as she had disclosed that she had a medical condition, which prevented her from working nights and that the offer of employment was therefore being withdrawn. 

Owing to the late withdrawal of the offer of employment, by the Respondent; the Complainant has found herself to be unemployed and only recently securing part time employment and has therefore incurred significant financial losses as a result. 

The Complainant stated that she was a “worker” within the meaning of the Industrial Relations Act 1969 (“the 1969 Act”) and the Complainant stated she was an “employee” within the meaning of the Employment Equality Act 1998 (“the 1998 Act”).

Section 8(1)(a) of the 1998 Act prohibits discrimination in relation to “access to employment” and as such covers “prospective employees”.  The Complainant stated that she is entitled to the protection of the 1998 act and as such can seek redress pursuant to section 77 of the 1998 Act.

The Complainant stated she suffers from a “disability” as defined in section 2 of the 1998 Act.

Section 6 of the 1998 Act provides that “discrimination shall be taken to occur where… a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”. Included in the “discriminatory grounds” at section 6(2)(g) is “the disability ground”.

The Complainant’s representative referred to the recent decision of the Supreme Court, delivered by MacMenamin J., in Nano Nagle v Daly [2019] IESC 63, provides a very clear explanation of the law which is applicable in the present case. Importantly, the Judgment set out in plain terms hierarchy and correct application of the various principles which can be distilled from, inter alia, the provisions of Irish employment legislation, Council Directive 2000/78/EC (“the Framework Directive”), the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), the applicable EU authorities and Irish authorities.

In particular the representative referred to paragraph 84 of the Judgment of MacMenamin J in full as follows:

Reduced to its essentials, the interpretation issue as applied here could, at one level, be characterised as to whether s.16(1) is to be seen as subject to s.16(3), or vice versa? The terms of the section have been set out earlier. Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, includingthe premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself. (Emphasis added)

They also stated that it is submitted that from Nano Nagle v Daly the following statements of law can be taken:

An employer does not have to retain an individual if they are not, or are no longer “fully competent” to undertake the duties attached to that position, having regard to the conditions under which the duties are to be performed.

A “person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation”, and “full competence is… to be assessed as contingent upon there having been reasonable accommodation and appropriate measures”.

Under both the Framework Directive and the 1998 Act “appropriate measures” and “reasonable accommodation” expressly includes the provision of practical measures to adapt or rearrange “patterns of working time”.

The terms of section 16 of the 1998 Act are mandatory. “They place a duty on the employer to show that, if they have not carried out such a process, then it is only because the re-organisation necessary would be disproportionate or unduly burdensome. What is essential is that it be shown, objectively, that the employer has, in fact, given the question of redistribution full consideration”.

This obligation is not “free-standing, and failure of compliance will not, in itself, give rise to a right to compensation. The effect of a ‘failure in that obligation’ must be considered in the framework of s.16 of the Act seen as a whole”.

There is not a “mandatory duty of consultation with an employee in each and every case”. However, “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”.

“If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination”.

The complainant’s representative also stated that taking the above principles into account, the observations of MacMenamin J. at paragraph 107 are worth noting also:

Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.

The Complainant state that the Respondent was on notice of the Complainant’s disability from April 2018 and, fixed with such knowledge, the Respondent offered the Complainant the position in July 2018. The Complainant accepted the offer and took a series of significant life decisions on foot of the said offer. It was not until September, five days before the Complainant’s first scheduled day, that the Respondent unilaterally purported to revoke the offer.

At no point did the Respondent engage with the Complainant with a view to ascertaining the extent of her disability and whether or not there were appropriate measures which could be put in place so as to facilitate the performance of her duties. Had the Respondent done so it would have realised that “the position… [was] in fact, capable of adaptation so as to accommodate [the Complainant], and [that the Complainant] would be capable of performing that function thus adapted”. Indeed, the Complainant had performed very similar functions at other employers where reasonable accommodation had been made without difficulty. Through its failure to consult with the Complainant, the Respondent has fallen well short of the “wise employer” standard set out by MacMenamin J.

The appropriate measures and reasonable accommodations which could and should have been made for the Complainant were neither disproportionate nor unduly burdensome to the Respondent. Furthermore, the provision of such appropriate measures and reasonable accommodation would not have led to a situation where the Respondent was forced to “re-designate or create a different job”. The Respondent did not give any real consideration and, as such, has failed in its mandatory duty under section 16 of the 1998 Act.

The Complainant allege that through this failure the Respondent discriminated against the Complainant within the meaning of, inter alia, sections 6 and 8 of the 1998 Act. In consequence of this discrimination the Complainant has suffered upset, loss, damage and expense. The Complainant has suffered specific losses to her continuation of employment, in her specialised area, which to date, she has not been able to secure further employment opportunities. Furthermore, the complainant has also suffered a breakage in her pension contributions. Further, the complainant also suffered from severe stress and anxiety, as a result of being left without an income , in  the lead up to her wedding; which resulted in significant financial pressure on her finances. The Complainant has therefore suffered significant financial losses personally and has only recently been in a position to secure part-time work in a GP s practice, where she is employed in an area which is outside her area of speciality and training. The complainant will say that she would never have initiated a relocation, if she was not in a position, to continue with her specified career.

The Complainant is seeking redress under from the Workplace Relations Commission pursuant to Section 77 of the Employment Equality Act 1998 as amended.  The Complainant’s complaint is such that she has been discriminated against, as a result of a disability which is a medical condition, which she holds, contrary to the Employment Equality Act(s) 1998-2011 (as amended). She states that this discrimination has prevented her getting a job by not providing her reasonable accommodation which is relieving her from night duty in this case. The Complainant has stated the last date of discrimination is the 2 November 2018.

The Complainant confirmed she did do some nights in her previous job.  She said the issue with this role was the fact she would be required to travel to and from work now via a commute for 1 ½ hours. The Complainant stated she discussed the issue with her previous employer regarding nights in relation to her application in this new role as she said she expected it may be an issue. 

The Complainant stated it was not raised at interview regarding nights. The Complainant stated there is no difference in duties between duties of nurses who operate day and night shifts. Normally staff are rostered over 24 hours.

The Complainant confirmed she stated her issue in the Occupational Health form and brought a Cert with her to the Occupational Health examination from her own Doctor to say she was unfit to work nights. Referring to Page 6 of the Job Offer there is a reference to the working week which stated that agreed rosters normally include night work. She said however she did not think she would have to.

The Complainant stated that she suffers from medically certified medical conditions namely irritable bowel and low blood pressure. She would have a 1.5 hour commute to and from work in the role in question whereas in the previous role she had public transport to commute home after work and on the ad hoc occasion where she had to do nights but as they knew she struggled on nights she did very few of them. The night work would impact her eating pattern thus impacting her medical condition negatively and her safety travelling the 1.5 hours commute to and from work.

The Complainant stated that on 4 September 2018 she received a call from the Recruitment Manager to say it’s been brought to their attention she couldn’t work nights. The Complainant stated that on 5 September 2018 she received a call the Occupational Health when she was asked for her medical details as to why she could not do the job of night work.  The Complainant refused share this information at that time, therefore, Occupational Health could not give the reasons why she couldn’t do night work to the HR Department. The job offer was withdrawn by email on 5 September 2018, as she could not fulfil the night work requirement of her contract. She has taken a claim accordingly for discrimination.

The Complainant’s first complaint pursuant to Section 13 of the Industrial Relations Act 1969 is referred under that of a trade dispute which is defined as

“means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person”.

The Definition of worker pursuant to Part II of the 1990 Act is defined as “any person who is or was employed whether or not in the employment of the employer with whom a trade dispute arises, but does not include a member of the Defence Forces or of the Garda Síochána; “

In the first instance, the Respondent holds that the Complainant could not be consider “a worker” as she was never employed by the Respondent.  While an offer was made of employment, the contract of employment was not entered into due to the Complainant being unable to fulfil an intrinsic and fundamental part of the position as Staff Nurse, i.e. working an agreed roster/on call arrangement.

It is therefore submitted by the Respondent that the complaint under Section 13 of the Industrial Relations Act should be dismissed as the Complainant has no locus standi as a worker.

The Complainant’s second complaint is made pursuant to Section 77 of the Employment Equality Act 1998 and in particular alleges that she has been discriminated against as a result of a medical condition.

The Respondent would submit that “medical condition” is not one of the nine discriminatory grounds as set out in the 1998 Act and accordingly the claim should be dismissed.

Section 6(1) of the Employment Equality Acts 1998-2015 provides as follows –

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any grounds specified in subsection (2) in this Act referred to as the “discriminatory ground”, which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

If Section 6(2) (g), the disability ground, is the basis for the Complainant’s complaint in the within case:-

“that one is a person with a disability and the other either is not or is a person with a different disability”

Section 2 of the act sets out the definition of “disability”:-

a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

c) the malfunction, malformation or disfigurement of a part of a person’s body,

d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person” 

In terms of the burden of proof in equality claims, Section 85A(1) of the Act provides as follows:

“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/her, it is for the Respondent to prove the contrary.”

It is for the Complainant to establish facts from which it may be presumed that prohibited conduct has occurred in relation to her.  In the Respondent’s case that the Complainant does not establish such facts.

It is not sufficient to simply state that because the Complainant asserts that:-

·         she has a medical condition and

·         the offer of employment was withdrawn on the basis that she could not fulfil the roster/on call arrangements

that prohibited conduct i.e. discrimination has occurred.

The Respondents representative state that it is submitted that there must be a link drawn between the alleged discrimination and the ground on which it is alleged there was discrimination.  The Complainant must demonstrate that the decision to withdraw the offer of employment was tainted by discrimination on one of the nine grounds specified in the Act. 

They further assert that it is established in case law that in employment equality cases the Complainant must produce some significant evidence of discrimination and not mere supposition in order to allow the Court to draw an inference that a comparator was or would have been treated more favourably. 

The Respondents referred to the case of Apparel Supply Solutions Limited (Formerly Teamkit Limited)  v.  Sundra Mullen (EDA146) in which it was stated:

“In order to succeed in her contention that these acts amounted to acts of discrimination, the Complainant must produce some significant evidence of discrimination and not mere supposition in order to allow the Court to draw an inference that persons of a different race or nationality were or would have been treated more favourably.”

Similarly, the Labour Court in the case of in Toker Developments Limited v Edgars Grods (EDA105) it was made clear thatthe mere fact of a difference in status (ie. race, age etc.) and a difference in treatment is in itself insufficient to shift the probative burden.  The Labour Court in that case stated that it was “impermissible for the Court reach conclusions of fact based upon mere supposition or speculation.”

In addition, the case ofMelbury v. Valpeters EDA/0917also states that “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In the Respondent’s view that the Complainant has not adduced sufficient evidence to allow the WRC to draw an inference in this case that there was discrimination.

The Respondent stated the burden of proof is on the Complainant to satisfy the Adjudication Officer that she fits within one of the nine discriminatory grounds and that was materially relevant to the withdrawal of the offer of employment and they stated an unspecified medical condition does not satisfy this burden.

The Complaint refers to an advertisement for employment with the Respondent and states that same mentioned flexible hours. The Respondent rejects any inference that the phrase “flexible working hours” if used could be interpreted as daytime working hours only in a 24/7 service which has night work as a normal part of the role. 

The Respondent stated the Complainant was aware of the Circular 003/2009 “Matching Working Patterns to Service Needs (Extended Working Day/Week Arrangements) Framework for Implementation of Clause 30.4 of Towards 2016” applies to all new entrants and staff appointed to promotional posts and staff on renewed temporary contracts after 16 December 2018.  This Framework Agreement reached between the health service trade unions and the employer is to enable the delivery of services on a 24/7 basis and must be applied to all new contracts.

The Complaint’s interview did not arise from an application under the said advertisement.  The Complainant emailed the Healthcare Provider on the 22nd March seeking “employment in specific department and attaching her CV. It was on foot of this email that an interview was arranged for the 5th April at 12 noon.

The Respondent stated that Assistant Director notes that at all interviews the candidates were informed that the all temporary and permanent staff nurse positions includes days and nights at the outset.

The Respondent states that the Assistant Director of Nursing during their telephone conversation on the 1 August 2018 advised the Complainant that the post being offered was for days and nights. However, according to the Complainant the only query the Complaint raised was whether she could do 3 long day shifts instead of 5 days as they would be most suitable as she was travelling from her home during the period of her induction.

The Respondent stated that on the 2 August 2018 the Complainant was sent a formal offer of employment from the Recruitment Department by post together with a contract of the employment and job specifications. It was made clear in the letter of offer that the offer of employment was made “subject to published conditions” which included night work. 

The Respondent stated the contract of employment and the job specification both refer to roster requirements.  In particular at Paragraph 9 the hours of attendance are set out as follows:-

“The contracted weekly working hours of attendance for your grade are 39 hours per week.

Your normal working hours are 39 hours. Contracted hour which are less that the standard weekly working hours for your grade will be paid pro rata to the full time equivalent.

The Respondent stated the contract referred to being required to work the agreed roster/on call arrangements advised by the line manager. It stated the Complainant’s work schedule would be liable to change to meet the requirements of the service in accordance with the terms of the Public Service Agreement. Where the Complainant was required to work unsocial hours and/or night duty it stated she will be remunerated at nationally approved rates for her grade. The contract stated that she may be required to work overtime, remuneration for which would be in line with the nationally approved rate for her grade.

The Respondent stated the ‘Job Specification Terms and Conditions of Employment’ refers specifically to the Circular 003/2009 “Matching Working Patterns to Service Needs (Extended Working Day/Week Arrangements) Framework for Implementation of Clause 30.4 of Towards 2016.  The Working Week sections goes on to specifically state:-

“Under the terms of this circular all new entrants and staff appointed to promotional posts from Dec 16th 2008 will be required to work agreed roster/on call arrangements as advised by their manager.”

The Respondent stated at no stage did the Complainant raise any issue with the roster requirements with Assistant Director nor with HR during the recruitment process. The Occupational Health Department are a totally separate entity who only confirm a candidate’s fitness or not or fitness with conditions to the HR Department – no other information is provided at that stage.

Whilst the Respondent accepts that the Complainant was deemed unfit for night duty by the Respondent’s Occupational Health Department, she was deemed fit for full-time hours and management were unaware and had no reason to believe that the unspecified “medical condition” which rendered the Complainant unfit for night duty constituted a “disability” in accordance with the Employment Equality Acts.   

The Respondent confirmed the evidence of the HR Officer that when the issue of the fact she could not do night duty came to their notice, the HR Officer telephoned the Complainant and explained the difficulty wherein the department was a 24/7 service and under the Framework Agreement the roster included night duty. 

Enquires were made by the HR Officer and by the HR Director to Occupational Health as to the nature and issues arising from the unspecified medical condition but the Respondent stated the Complainant refused to discuss that information and so any opportunity to investigate and possibly come to some arrangement with the Complainant was lost. However, it’s important to note from oral evidence presented the decision to withdraw the offer was made prior to exploring this.  However, Occupational Health did contact her later that day regarding her condition but she did not engage.  There was also formal communication sent to her suggesting that she engage and confirm the details of her likely timeline to do night work but again she did not engage.

The Respondent denies that management were aware that the Complainant was suffering from a “disability” and the withdrawal of the offer of employment was due to the fact the Complainant was not in a position to fulfil the duties of the role offered. 

The Respondent in this case was not aware of a “disability” only that a restriction existed and without knowledge of the exact nature of the reasoning, there was every possibility that this limitation would not affect the Complaint’s ability to work a full roster and could cease in the near future. 

The Respondent in this regard, relies upon the case of Seamus Counihan v. Swan O Sullivan Accountants and Registered Auditors(EDA1810). The Complainant was employed as a Trainee by the Respondent. He claims that he was discriminated against on the basis of his disability, epilepsy. The Respondent contends that it was unaware that the Complainant suffered from such a disability. The Complainant failed to tender any medical evidence which demonstrated his diagnosis of epilepsy. The Respondent maintained that it was never made aware, formally or otherwise, up until the time that the Complainant’s employment was terminated, of the nature of his illness. In his evidence the Complainant said that he had numerous conversations with management about his condition. The Respondent was aware that the Complainant was having some health difficulties which lead to him being hospitalised.

The Respondent submit that in order to establish a prima facie case of discrimination, the Complainant must satisfy the Court that the Complainant was a person with a disability at the time material to his claim. If yes, the Respondent was on notice of the disability, the Complainant was dismissed on grounds of his disability. The Complainant failed to produce medical certification or to clarify that the reason for his absence was anything other than a one off seizure. It would be unequitable to fix the Respondent with knowledge of such. The doctrine of constructive notice of a disability should not apply.

The Respondent asserted that it is also clear from case law that not every short-term health restriction will be considered a “disability” under the Employment Equality Acts.  If every single ailment or medical issue, regardless of duration etc., were to be considered a “disability” this would create an unreasonable and unacceptable burden on the employer.

This issue was also considered in the above case of Seamus Counihan v. Swan O Sullivan Accountants and Registered Auditors (EDA1810).   It was acknowledged thatthe definition of disability under Section 2 of the Employment Equality Act 1998 as amended, is a broad definition. It can encompass any injury or illness whether it is temporary, permanent, curable or incurable. However, it was not envisioned that every injury or short-term illness was to come within this definition. Therefore, it is a question of degree. One must ask to what extent the condition may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.

The Respondent stated that as a matter of routine, management are frequently notified of certain restrictions or limitations in relation to work abilities, most of which are subject to ongoing reviews. If something of a more serious and potentially long-term restriction is at issue, this is usually notified to management in order to facilitate the staff member and also ensure whether an appropriate risk assessment is required or whether alternative work duties might require consideration.

The Respondent submits as follows in order to rebut the presumption of discrimination. The Respondent denies that it has discriminated against the Complainant on disability grounds, either directly or indirectly. As part of a general nursing contract roster and on call arrangement are referred to in the section entitled “Working Week”. In particular the contact sent to the Complainant on the 2ndAugust 2018 states:

“The standard working week applying to the post is 39 hours.

Healthcare Provider Circular 003-2009 “Matching Working Patterns to Service Needs (Extended Working Day/Week Arrangements); Framework for Implementation of Clause 30.4 of Towards 2016” applies. 

Under the terms of this circular all new entrants and staff appointed to promotional posts from Dec 16th 2008 will be required to work agreed roster/on call arrangements as advised by their line manager. Contracted hours of work are liable to change between the hours of 8am-8pm over seven days to meet the requirements for extended day services in accordance with the terms of the Framework Agreement (Implementation of Clause 30.4 of Towards 2016)

The Respondent alleged that no evidence of direct discrimination has been put forward by the Complainant.

The Respondent denies any indirect discrimination against the Complainant i.e. as set out in Section 31(1) of the Acts. 

The Respondent allege that there is no evidence to support the Complainant’s assertion that she has been indirectly discriminated against on grounds of disability, and that the application of the Framework Agreement, to include a requirement to do night duty, does not particularly disadvantage the Complainant.

In Inoue v NBK Designs [2003] 14 ELR 98 the Labour Court set out the test for objective grounds.  It requires the employer to show that impugned measures: Correspond to a real need on the part of the undertaking; are appropriate with a view to achieving the objective pursued; and are necessary to that end.

This followed on from the European Court of Justice decision in Bilka-Kaufhaus GmbH v Karin Weber von Hartz Case 170/84 [1986] ECR 1607. The Respondent can demonstrate that it satisfies the test set out by the Labour Court in Inoue v NBK Designs.

The Respondent stated they did not realise the Complainant was unavailable for nights due to an administration issue of getting details from Occupational Health.  Once received they contacted the Complainant to discuss same.

The Respondent stated that the Complainant’s refusal to give them further medical information about her medical reasoning and for not being able to work nights meant they were unaware of disability and could not provide reasonable accommodation as a result.  They wrote to the Complainant in October to address the matter also.  The Complainant did not respond to the letter of 12 October 2018 from HR regarding their offer to try to accommodate her if they received medical details from her regarding fitness and likely availability to be able to do nights.

The Respondent stated the Complainant choose not to disclose this very relevant information. The Respondent in this case was not aware of a “disability” only that a restriction existed and without knowledge of the exact nature of the reasoning, there was every possibility that this limitation would not affect the Complainant’s ability to work a full roster and could cease in the near future. 

The Respondent stated the offer of employment was conditional on her meeting on conditions and it was withdrawn fairly accordingly.

The Respondent stated there was no cert issued outlining she had a disability, it only stated a medical condition.

The Respondent stated there was a conversation on realising her restriction.  They stated they did not realise the Complainant had a disability at that stage.

The Respondent stated that the Complainant can do night work under certain conditions per previous roles. 

The Respondent stated the Complainant was written to on 12 October 2019 to try to reach an agreement in respect to her disability.  She did not reply or engage at that stage.

The Employee Relations Manager confirmed if a person was employed they would need to know details of condition to put reasonable accommodation measures in place.

The Recruitment Manager gave evidence as follows: After the interview the candidate receives a clearance pack if successful at interview stage. That included a document clearly outlining the specific details of that job requirements that Occupational Health should consider.  This refers to Page 1 of the document that the candidate completes the remaining information which goes directly to Occupational Health after that and HR/Recruitment do not see the completed form including medical details unless she specifically agreed to release it to HR.  This did not occur in this case.

The Recruitment Manager stated the fact that the Complainant was confirmed as fit to work with a medical condition attached. She requested more information from Occupational Health but they could not disclose information as the Complainant refused disclosure.  She confirmed they had not withdrawn an offer of employment in her 20 years so she wanted to be thorough and prepared.

The Recruitment Manager stated they have facilitated and considered other medical conditions previously once they knew the information.  In this case they did not.  They did not know if this condition would last indefinitely or what was required to accommodate her without information.

The Recruitment Manager confirmed that everyone goes through Occupational Health to determine fitness/unfitness or fitness with restrictions.

The Recruitment Manager stated that in this case the restriction associated with the Complainant’s fitness to work i.e. she could not do night work was missed until the week before she was due to start. The Recruitment Manager spoke to HR Manager about this. They agreed to withdraw the offer and they wrote to the Complainant on 5 September to confirm same.

It would be normal to get details of medical conditions i.e. broad detail to understand the reason why a person had the restriction or need for accommodation in place but in this case all they knew was due to a medical condition she could not do nights.  Once they received further information that confirmed a disability they would consider if they could provide reasonable accommodation. The Respondent did not obtain this information on this occasion as they were under time pressure to make a decision on offer at the meeting she had with the HR Manager. She never linked this to her having a disability just that she couldn’t do nights. They therefore made the decision to withdraw the offer and Occupation Health contacted the Complainant after that decision that afternoon to get more information on her medical condition but they confirmed she wouldn’t disclose the information.

I have considered all information and evidence presented to me in conjunction with the legislation and case law in reaching my findings. 

CA-00027676-001

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.— (1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

13. - (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) If the Court has made a recommendation in relation to the dispute, or

(ii) If a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

Section 23 of the Industrial Relations Act 1990 details the description of “a worker”:

“In this Act (except Part VI) the word “worker” means any person of the age of fourteen years or upwards who has entered into or works under a contract with an employer whether the contract be for manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or an apprenticeship or a contract personally to execute any work of labour, other than

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(d) an officer of a local authority,

(e) an officer of a vocational education committee, or

(f) an officer of a school attendance committee.

CA-00027797-002

Section 6 of the Employment Equality Acts 1998-2015 provides the following:

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different marital status (in this Act referred to as “the marital status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the traveller community and the other is not (in this Act referred to as “the traveller community ground”).

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The burden of proof is on the Complainant to satisfy that she fits within one of the nine discriminatory grounds and that one of those grounds was materially relevant to the withdrawal of the offer of employment. It is for the Complainant to establish facts from which it may be presumed that discrimination and prohibited conduct has occurred in relation to her. 

It is not sufficient to simply state that because the Complainant asserts that as she he has a medical condition and the offer of employment was withdrawn on the basis that she could not fulfil the night duty roster/on call arrangements that prohibited conduct i.e. discrimination has occurred.

To summarise in order to establish a prima facie case of discrimination, the Complainant must satisfy the Adjudicator that the Complainant was a person with a disability at the time material to his claim. And if that is met then the Respondent was on notice of the disability and the Complainant was dismissed on grounds of their disability.

The Law Section 2 of the Act defines the term “Disability” as follows: -

“(a)the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b)the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c)the malfunction, malformation or disfigurement of a part of a person's body, (d)a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”.

Contributing Factors to this case I have considered include the following:

1)      Candidate did not disclose at her interview or during the calls with the company or in returning her job offer that she could not work nights.

2)      There was a 7 week time laps from Occupational Health Report confirming the Complainant could not work nights to the Recruitment Manager becoming aware of this. This was an internal systems error within their process.

3)      The Respondent only knew the complainant has a medical condition at no stage did it refer to a disability or reasonable accommodation in the Occupational Health Report. She did not co-operate with the Company by sharing further details of her condition the afternoon the offer was withdrawn and when they wrote to her asking her about the details of same also.  Not all medical conditions are disabilities and this is a key consideration of this case.

4)      I must consider if the candidate’s request for reasonable accommodation was in line with the legislation’s requirements on the basis they understood she had a medical condition. The Complainant suffers from medically certified medical conditions namely irritable bowel and low blood pressure. She would have a 1.5 hour commute to and from work in the role in question whereas in the previous role she had public transport to commute home after work and on the ad hoc occasion where she had to do nights. She did them in her previous role but as they knew she struggled on nights she did very few of them. The night work would impact her eating pattern thus impacting her medical condition negatively and her safety travelling the 1.5 hours commute to and from work.

5)      The legislation states in Section 16/3 of the Employment Equality Act 1998 (as amended) that an Employer must provide reasonable accommodation to an employee to enable the person with the disability to have access to employment.   Under Section 16, the legislation states reasonable accommodation’s appropriate measures does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself. If I accept she has a disability I must therefore consider the Candidate’s request for reasonable accommodation hinges on the fact her commute to work was going to be longer 1.5 hours each way and as a result of her medical condition her eating habits at night would impact her safe commute to and from work. 

It is helpful to summarise the evidence based on the timeline of events in considering my findings as follows:

Because the candidate was looking to relocate she applied for this role as it was the closest proximity to her niche area of expertise from her home.  This would however now involve 1.5 hour commute to and from work. A point to note was the Complainant says she applied for the position as it said flexi hours and therefore she expected no night work as a result.  I do not accept based on her own evidence that she thought this role did not include nights.

The candidate applied for the job via National Panel and also directly to the Healthcare Provider in March 2018. She was offered an interview for April 2018 after which the clearance process commenced including Occupational Health.

23 July 2018: Occupational Health.  The Occupational Health Doctor certificate was dated 9 July 2018 “the candidate is unfit for night work due to a medical condition”.  She gave Occupational Health Certificate from her own Doctor saying she was medically unfit to work nights.  The Occupational Health noted same therefore in his medical assessment. 

1 August 2018: Call with Assistant Director where the Complainant said she asked if should could do 3 long days instead of 5 normal days during her induction.

2 August 2018: Complainant was sent job offer and contract of employment – mentions night work compensation.

3 August 2018: The Complainant resigned from her other role.

4 September 2018:  Recruitment Manager called her to say they had just realised that there was an issue she couldn’t work nights which was only noticed now.  The Complainant said she raised it at the interview. 

The reason she couldn’t do nights was because of a Medical Condition in this case which was Irritable Bowel and Low Blood Pressure which would impact her eating habits during night work and in turn her commute to and from work and drive home which could be a risk to her health and safety as a result due to her 1.5 hour commute home. This information was not presented to the Respondent’s recruitment department until the hearing and at the time of their decision to withdraw their offer they were only aware she had a medical condition which prevented her to do night work as outlined in the Occupational Assessment Report.

The Occupational Health information is completely separate to the Recruitment Department who did not have any information on the details of why she couldn’t work nights or for how long this would be the case.

5 September 2018: Confirmed to Candidate by email they had withdrawn the offer as she was unable to do night work. The recruitment Manager confirmed she had withdrawn the offer prior to any update from Occupational Health as she was due to start work in 3 days so they were under pressure to make a decision.

5 September 2018:  Occupational Health called her that afternoon to ask her to share her medical information with the Recruitment Department as to why she couldn’t work nights. She refused to disclose this information on that call so they couldn’t access this information as a result.

This was a key opportunity to resolve the matter and I do not find it was reasonable for the employee not to engage as this stage and disclose the information.

12 September 2018:  Complainant wrote to confirm she was considering legal proceedings.

28 September 2018:  Complainant letter to the Respondent stating to call her on the morning of 5 September 2018 the request to release details of her medical was unacceptable so she refused same. I do not agree that this request was unreasonable and find this to be a lost opportunity which could have resolved the matter if engagement occurred.

I find the Complainant’s medical condition may or may not have met the broad definition of disability outlined in the legislation, however, as the Complainant did not engage with the Respondent to give them sufficient information to assess if it was in turn what reasonable accommodation would be required if it was deemed to be a disability. It is not for the employee to decide on the reasonable accommodation they would need it is for an Occupational Doctor to do so and without sharing her medical details the Respondent could not make this decision.  I find that reasonableness is a requirement for both the employee and employer and I do not find the employee’s withdrawal of this information is reasonable. 

I now need to consider 1) did the Respondent discriminate the Complainant due to her disability by withdrawing her offer and 2) was her request for reasonable accommodation in line with legislation.

In order to establish a prima facie case of discrimination, the Complainant must firstly have satisfied the Adjudicator had she had a disability at a time material to her claim.

Constructive notice arises where a person is under a duty to make enquires which, if made, would have revealed the knowledge that the Respondent claims not to have had. In Somers v W [1979] IR 94 Henchy J described the concept as follows: -

When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.

The applicability of this doctrine in an employment context was confirmed by the High Court of England and Wales in Sayers v Cambridgeshire County Council [2006] EWHC 2029.

The oral evidence from the Recruitment Manager confirmed that due to administrative errors it was realised very close to the candidate’s start date that she would not do nights so the offer was withdrawn in the morning, and in evidence presented I understand that the Respondent sought, after the offer was withdrawn on the same day via Occupational Health calling the Complainant, to gain more information on the medical condition and restriction. The Respondent requested Occupational Health to ask the Complainant to release such information. As per the Complainants letter to the Respondent dated 28 September 2019 the Complainant specifically states ‘to telephone call me on the morning of 5 September 2018 seeking permission to release details of my medical assessment. I refused this request as I deemed it totally unacceptable behaviour.”

The Respondent in their letter of 12 October 2018 reverts and requests that if the Complainants medical doctor could provide a prognosis setting out when or if she will be fit for night duty at some point in the future that the Respondent can view some viable arrangement in terms of the employment with Healthcare provider.

In considering this the Adjudicator has examined the reasonableness of both parties in this claim and the Adjudicator is influenced by the following factors applying at the material time: -

The Complainant did not at any time seek reassurances from the Respondent that such a role did not include night work, considering she was fully aware of her own medical condition during the recruitment process yet it was normal practice for such roles that it would cover night duty.  This was supported by the Claimant’s oral evidence.

The Complainant stated there is no difference in duties between duties of nurses who operate day and night shifts. Normally staff are rostered over 24 hours. The Complainant has stated that she has completed night work in her previous job and that the issue in the new role is that she would not have public transport and would have to commute for 1.5hours. She said she needed to eat more frequently which did not suit night work and her subsequent commute may put her at risk driving home due to this. The Adjudication notes that the completion of the night work element of the role would not have been an issue, however it appears more to be the location and lack of transport that limit the Complainant in her alleged inability to work nights.

The Recruitment Manager stated that in this case the restriction associated with the Complainant’s fitness to work i.e. she could not do night work was missed until the week before she was due to start. The Recruitment Manager spoke to HR Manager about this. They agreed to withdraw the offer and they wrote to the Complainant on 5 September to confirm same. It would be normal to get details of medical conditions i.e. broad detail to understand the reason why a person could not do nights.  Once received the information they would consider if they could provide reasonable accommodation. The Respondent did not obtain this information on this occasion as they were under time pressure to make a decision on offer at the meeting she had with HR Manager, however, later that same day the Occupational Health did contact her for more details on her condition which she failed to release.

On the evidence submitted to the Hearings I am satisfied that the Complainant has established facts to indicate that she was suffering from an irritable bowel and low blood pressure however at the time these medial conditions cannot be classified as a disability without further clarification by a medical practitioner.

The ‘fitness classification certificate’ dated 9 July 2018, stamped as received dated 23 July 2018 carries one relevant comment stating the following: the above candidate is unfit for night work due to a medical condition. The offer dates 2 August 2018 confirm the position offered is subject to the published conditions of the post. On 5 September 2018 the Occupational Health nurse called the Complainant to ask for access to her Medical records and she declined the same. The Occupational Nurse stated she needed to understand same to understand the reason she couldn’t do the nights. Later that day the Complainant subsequently received an email withdrawing the job offer on the basis she could not do nights. The decision to withdraw the offer was made prior to getting an update from Occupational Health that the information that the Complainant would not disclose details of her condition. The letter of 11 September states that the offer was revoked due to her inability to work nights due to her medical condition. A prudent employer would have contacted her formally about this sooner but I accept the time lapse occurred due to an administrative error, and when they called her that afternoon the matter could have been resolved and by engagement to their letter requesting her to confirm when she would be likely to do nights including on the 12 October 2019: Respondent wrote asking for details of the Complainant’s condition and likely availability to do nights.  She did not engage. I find that this is a second lost opportunity to resolve the matter as it was clear her position was still available especially due to her niche skills and expertise.

There was no advice from the Complainant’s Doctor to say she needed to be provided reasonable accommodation however, at the hearing he did state she was fully fit for work but unable to work nights. The reasonable accommodation she requested was that she would not work nights. To summarise enquiries were made at various times by the Respondents as to the nature and issues arising from the unspecified medical condition.  After the withdrawal in further interaction between the parties the Complainant refused to discuss that information and so any opportunity to engage and possibly come to some arrangement with the Complainant was lost; this cannot be understated as the Respondent did engage with the Complainant to ask her to clarify her medical condition and details regarding how long she would be unavailable for nights however she did not engage which I find unacceptable and unreasonable.

CA-00027676-001 

Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute. I recommend that the candidate’s application be considered if she were to apply for a suitable position again in the future if a position arose in line with the normal selection criteria if she was successful and she was in a position to meet the terms of the position.

CA-00027797-002

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the Complainant in accordance with the relevant redress provisions under section 82 of the Act. In the circumstances, the Adjudication Officer finds that the Complainant has not established a prima facie case of discrimination contrary to the provisions of the Employment Equality Acts.

In order to establish a prima facie case of discrimination, the Complainant must satisfy the Adjudicator that she was a person with a disability at the time material to his claim and that the Respondent was on notice of the disability and the Complainant was dismissed on grounds of her disability by failing to provide her reasonable accommodation. I find the Complainant’s medical condition may or may not have met the broad definition of disability outlined in the legislation, however, as the Complainant did not engage with the Respondent to give them sufficient information to assess if it was in turn what reasonable accommodation would be required if it was deemed to be a disability. It is not for the employee to decide on the reasonable accommodation they would need it is for an Occupational Doctor to do so and without sharing her medical details the Respondent could not make this decision.  I find that reasonableness is a requirement for both the employee and employer, and I do not find the employee’s withdrawal of this information is reasonable.  I find the Complaint fails and the candidate was not discriminated due to the disability grounds as the Respondent was unaware of any disability as not all medical conditions are disabilities.  Also, it is worth noting that even though the Respondent, engaged with the Complainant the afternoon the offer was withdrawn to ascertain her medical information and did so a second time some weeks later also regarding her condition and the likelihood for her to be in a position to do night work.  I find it unreasonable that she did not engage or co-operate with same which meant the opportunity to try to progress and resolve the matter was lost.