EDA216

1.An appeal of an Adjudication Officer's Decision No(s)ADJ-00007638 &ADJ-00009592

BACKGROUND:

2.The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts , 1998 to 2015.A Labour Court hearing took place in a virtual setting on26^thJanuaryand 2^ndMarch 2021. The following is the Determination of the Court:

DETERMINATION:

• “…based on occupational health report 19/2/16 and the recent report from my consultant psychiatrist it is clear that I am not going to return to work with [the Respondent], given the current available posts”

• “…. he is incapable of carrying out the duties associated with such post due to his mental health difficulty (specific phobia). This difficulty is unlikely to change at any stage in the future as it is chronic and longstanding in nature and had not improved with pharmacological and non-pharmacological intervention this far.”

• “The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such an inference may be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show on the balance of probabilities that it did not discriminate against the appellant. The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

• “But I would again wish to emphasise these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open-ended one. There is no obligation to redefine the employment of an airline pilot as an airline steward, or vice versa. The question is, rather, to consider whether the degree of redistribution, or “ accommodation ”, is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer. Even within the scope of compliance, a situation may be reached where the degree of re-arrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined objectively.”

• Cairdeas: caters for service users with severe to profound disabilities,
  Comeragh: caters for service users with profound disabilities , it is nursing lead and includes residential units, including Milestone House,
  Tory: caters for service users with mild to moderate disabilities,
  Parkside: caters for service users with mild to moderate disabilities, and includes residential units, including Riverview,
  Baile: caters for service users who are capable of independent living.

The witness was asked about the letter dated 23rd February 2016 from Mr S to HR, which stated that Mr S had contacted a staff nurse in Milestone House to ascertain the current requirements of the service users. He said that he did not but accepted that there were 3-4 services users in that house requiring intimate care. However, he said that the team in Milestone were quite supportive of him. However, he said that it was his decision due to his mental health not to avail of the rehabilitation plan. He said due to his disability he could not work in any service where he would be required to carry out intimate care.

The Complainant was asked if the Respondent had ever considered funding options to accommodate him, he said that the resources of the Respondent were depleting at the time and that he never raised this issue with them. He said that had a part time Care Assistant been recruited to held him in the mornings then that would have assisted him in his condition.

The Complainant disagreed that the provision of intimate care to service users was part of all Care Assistants’ duties on a daily basis. He was questioned about the advertised Care Assistant post in Parkside in November 2016. He said that he enquired about it as it would have suited him to work there, he said that he was told that he would have to apply through open competition for the post. He said that he was unaware of any policy which would require him to have to apply for a transfer though an open competition. He said that he was not looking for a new job, but he was seeking a position without the requirement to provide intimate care to service users.

He said that the last date he had a face-to-face meeting with management was on 12th October 2016 at the WRC regarding his industrial relations case. He engaged a Solicitor in December 2016 and sought to be returned to work.

In cross-examination the witness was asked when he brought his condition to the attention of the Respondent, he said that while staff were aware that he had a difficulty with intimate care of service users, one of the nurses in Cairdeas reported him to management and he was referred to Dr Akhtar Syed, Clinical Psychologist for the Respondent, in April 2006. He said that he was at a loss to know where that report got to. He agreed that it was not mentioned until the hearing before the Adjudication Officer and was not mentioned by IMPACT or by the Complainant’s Solicitor prior to then. He accepted that the medical certificates furnished to the Respondent by his GP in May 2014 did not state that he was suffering from Clinical Depression and gave no reason for his absence. He said that his managers were aware that he was on Lexapro. He accepted that he had worked in Milestone House for two years before he went on sick leave due to his condition. He said that following his trial at Hollyhurst, he continued to work in Milestone while seeking redeployment, with his colleagues’ support, however, he said that they could not always be there when he needed them to perform the personal intimate care needs of the service users.

The witness accepted that sometimes he would be working on his own and stated that intimate care was a problem and being on his own would seriously impact on that difficulty.

The witness recounted the details of a meeting which took place in the Tower Hotel, Waterford, on 21st September 2016, where he met with his IMPACT representative, and discussed the option of early retirement due to ill health. He agreed that following the meeting, he submitted an application to the Respondent for early retirement on the grounds of ill health. The advertisement for the Parkside position was advertised in November 2016 with a closing date of 24th November 2016, at which point he was in the process of applying for early retirement to leave his employment. The Complainant agreed and referred to the fact that on 15th December 2016, his Solicitor revoked the early retirement option on his behalf. However, he accepted that this was post the closing date for the Parkside position. He was asked about the letter from the Department of Social Protection dated 23rd February 2017 where it was decided that he was not entitled to an Invalidity Pension as he had not proved that he was permanently incapable of all types of work. He said that he responded to say that his disability related to the provision of intimate care to service users.

The Complainant accepted that from May 2014 when he went out on sick leave, the advice he received from the Respondent informed him that his job was at risk. He also accepted that Dr Flynn, Consultant Psychiatrist reported that if his post continued to involve exposure to faecal matter, then he was of the view that the Complainant was incapable of carrying out the duties associated with his post due to his mental health difficulties and was unlikely to change in the future. He accepted that Dr Flynn’s view was correct.

The Complainant accepted that he was advised that his job was at risk, he was offered relocation, he was offered a rehabilitation plan which included redistribution of the intimate care task to team members which would mean that he did not have to carry out such a task. He accepted that he was offered these options, however, he said that he was afraid that if he was on his own and was confronted with a service user with a soiled pad, he could not carry out the intimate care needed. He said that the proposition of returning to this role had caused him such a severe exacerbation of his condition that it led to an attempt on his life. He accepted that he could never carry out intimate care even in an emergency. He acknowledged that the Respondent was attempting to accommodate him with the rehabilitation plan, however, he said that while the other members of the team may take on the task of intimate care, there was always the possibility that there may be an occasion when he would be required to carry out intimate care for a service user, he could not do it. He said that he could not even try it out and when he considered the option offered to him it caused him to have a mental breakdown at the time. His GP spoke to the Respondent and he was referred to a Consultant Psychiatrist.

The witness was questioned about Dr McBrinn’s report dated 19th February 2016, in which it states the following:“The prognosis for [the Complainant] to return to work in a satisfactory capacity even in the absence of his stressor, is in my opinion very guarded given his prolonged absence from the workplace.”He was asked if he had disputed this opinion and replied that he had not but that he was on a lot of medication at the time. He was also questioned about a report from Dr Flynn, eight months after Dr McBrinn’s report, dated 7th October 2016 where Dr Flynn, Consultant Psychiatrist stated that“I am of the strong opinion that he is incapable of carrying out the duties associated with such posts due to his mental health difficulty (specific phobia). This difficulty is unlikely to change at any stage in the future as it is chronic and longstanding in nature and has not improved with pharmacological and non-pharmacological interventions thus far.”He said that he relied on his trade union representative at that point, who negotiated on his behalf with management, and it was decided that he would avail of early retirement due to ill health. He pursued his option but declined it having received advice from a Solicitor.

With reference to his claim that he was victimised for having submitted a claim of discrimination to the WRC on 10th March 2017, he said that having referred his claim he was advised that his job was at risk and he was dismissed in April 2017. He appealed his dismissal, and his appeal was heard by an external HR consultant, who decided against his appeal.

In response to questions from the Court the Complainant stated that he was first advised that his job was at risk in March 2016. He said that when he commenced employment as a Care Assistant, his first position was with the Respondent and he was placed in Cairdeas. He said that he was not aware of his phobia until he commenced working and his colleagues were supportive of him. He was transferred to Parkside in June 2007 and continued working there until 2012, he said he had no difficulties with his phobia as there was no personal care requirement in Parkside. As a result of disciplinary action taken against him concerning other staff in Parkside, he was dismissed from his employment, however this was revised to re-engagement with a final written warning and he was assigned to Milhouse in January 2012.

When questioned about the rehabilitation plan, the witness said that it would not have worked unless an additional staff member was appointed to carry out his intimate care duties as he accepted that he was permanently incapacitated in that he will never be in a position to carry out the task of personal care needs of service users. He said that he could have worked in Parkside, Tory, or Baile as no personal care needs were required in these services by the service users. He informed the Court that he has not sought a Care Assistant role since his dismissal.

Summary of Ms M’s Evidence

Ms M gave evidence on behalf of the Respondent. She has been employed by the Respondent since April 1993, initially as a nurse in Residential Services, she moved to different services of the Respondent and was promoted on a number of occasions culminating in her position as Manager in Commeragh in March 2017. She was questioned about the various services and the level of intellectual disability of the services users in each of the facilities. She said that no one category of service user from mild, moderate, sever, to profound was free from intimate care needs.

Ms M was asked about the minutes of a meeting held on 13th February 2014, where Mr S, Comeragh Services Manager, referred to the offer made to the Complainant at the time of a move to Hollyhurst. The minutes refer to her being asked to arrange an induction day for him in Hollyhurst, in order to give him an idea of what the work was like compared to Milestone House. She was asked about the reference in the minutes where it states that Mr S had on previous occasions informed the Complainant that“in most areas of our Services, if not all areas, he will at some stage need to assist with intimate hygiene of a toileting nature, with many individuals, whether it may be those who may regularly require same.”The witness was asked if it was accurate to state that the requirement for intimate care arises in all areas of the Service, she responded that yes it was accurate. She said that the ethos of the Service is to provide dignity, respect and care to its service users, provide them with whatever support they need and that includes the provision of intimate care. She was asked if it was possible not to be exposed to soiled pads, she said that it would be very challenging as service users’ needs change so there was no guarantee, even in Tory and Parkside.

In cross-examination, Ms M was asked about the different services within the organisation, she stated that Comeragh was a high needs service while Parkside was a lower needs service. In Comeragh there were 43 services users, 3 were profound, 13 severe, 21 moderate and 5 were mild. She informed the Court that there were approximately 300 employees in the Respondent’s Waterford site and approximately 300 service users, of which approximately 46% were Care Assistants, plus an Occupational Health Nurse, and Dr McBrinn, Occupational Health Physician, who is on contract to the Respondent.

The witness was questioned about funding for the organisation. She said that it is entirely state funded. She told the Court that the Finance Team are responsible for dealing with funding matters, which is based on the number of service users and is based on the individual needs of each service user, as each has a person-centred plan, which is updated annually, e.g., when a service user develops dementia, their needs change and they require very intensive supports. She said that service users’ needs can change very rapidly for medical care reasons. She said that it’s challenging to get funds for the changing needs of the users and the organisation is not fully resourced to meet its needs.

The witness said that the only involvement she had in the Complainant’s case was in 2013 when she was based in Residential Care, she assigned him to Hollyhurst for a trial. She was questioned about the service users in Milestone House. She said there were 6 users, 2 wear pads, 3 staff work during the day, one of whom works on a split shift. She said that sometimes due to appointments that the service users have or due to day outings, there would only be one staff member in the house. At night-time there is one staff member on duty.

The witness said that if a service user needs to go to hospital then a member of staff accompanies the user on a 24-hour basis. In such circumstances the Finance Team seek more funding and a “Dismatch” form must be completed, which is then the subject of negotiations with the HSE.

The witness was questioned about the option of transferring from one position to another. She said that it could be by open competition, or by informal interview, the decision is made by HR. She was asked about one Care Assistant who had back problems and was asked about the accommodation that person received. She said that the Occupational Health nurse had assessed her, she had received physiotherapy, a plan was worked out for her to be facilitated with her back problem however, having been accommodated the Care Assistant had resigned on health grounds.

When questioned about the facilities that could be afforded to the Complainant, she said that he had been offered a number of options, a rehabilitation plan had been devised, however, he had not availed of them. She said that if he was the only person on duty, he could not leave a service user in a state where their personal intimate care needs were being neglected. She said that an additional person could not have been appointed to assist the Complainant as the funding would not have been provided as it was based on the needs of the service user and she was of the opinion that that was not the solution.

The witness was directed to a letter from the Occupational Health Nurse which stated that the Complainant did not have a difficulty with assisting the service user with wiping or with urinary incontinence. On that basis, she was asked where he could have been accommodated. She replied that he could have worked in Milestone House as there was an agreement with other staff that they would assist him in the intimate care need of the service users or he could have worked in Hollyhurst as there was no users there now with incontinence pads, there was at the time one such user.

A question was put to the witness regarding the possibility of a transfer. She said that a member of staff can only apply for a transfer if there’s a vacancy, and there’s a constant evolving of jobs. If a member of staff leaves or if there are changing needs for a service, then posts are advertised internally and externally. At the time when the Complainant was in employment posts were advertised internally on a weekly basis and staff regularly move from one service to another. She said that she never had an application from the Complainant for an advertised vacancy.

When asked if the Complainant’s phobia was unusual in the organisation, she said that in her experience it was unique for a Care Assistant to have such a phobia. She said that in Parkside there are two high dependency support users, in any event there might be some element of intimate care needs. While she said that she was not overly familiar with that service she said that it would be surprising if intimate care needs were not required in that service. With reference to the offer of a rehabilitation plan as outlined to the Complainant in the letter dated 12th November 2015, the witness said that this was a well thought out plan, with his team colleagues willing to support him with the intimate care needs of the service users, there were only two service users who required should care, however, there was always the possibility that he may be alone and it would be problematic if he could not do it as the ethos of the organisation is to provide dignity, respect and care to its service users.

Summary of Ms T’s Evidence

Ms T, Human Resources Manager, gave evidence on behalf of the Respondent. She has been employed with the Respondent for 23 years. She said that the Complainant’s phobia came to her attention in May 2012 when Mr S had discussions with the Complainant regarding the problem. She said that the first time she became aware of his referral to Dr Akhtar Syed, Clinical Psychologist in April 2006 was at the hearing before the Adjudication Officer. She said that Dr Syed is the Clinical Psychologist who deals with the Respondent’s service users, staff are never referred to him.

The witness said that managing the Complainant’s accommodation for his phobia and his absence had been a three-year process, culminating in his dismissal due to incapacity in 2017. She referred to a letter dated 27th March 2017 when the Respondent wrote to the Complainant regarding his absence from work and outlined that due to his incapacity to carry out the duties associated with his post that his employment with the Respondent was at risk. She said that this was the end of a long process, management had explored all reasonable accommodation options, he was unfit to return to work and he had decided he was going to retire on ill health grounds. Dr Flynn supported his ill health retirement as he had diagnosed him as being incapable of carrying out his duties due to his mental health difficulties. However, the Complainant changed his mind and withdrew his application on his Solicitor’s advice.

The witness was questioned about the advertisements posted in November 2016 for Care Assistants and why the Complainant was not offered one of these posts. Ms T stated that at the time they were processing his ill health retirement application, therefore there was no need to approach him about the posts.

The witness said that to hire an additional Care Assistant to support the Complainant was not within its policy on ‘reasonable accommodation’, which can include a change in working hours, a transfer to a new location, adjusting starting/finishing times. In the Complainant’s case, she said that his position was held open for three years.

In cross-examination, the witness was asked about the letter of 12th November 2015 which outlined the rehabilitation plan for the Complainant. She was asked if this was the first time that the issue of reasonable accommodation and the distribution of tasks was given for the Complainant’s phobia. She stated that it had been considered on a number of occasions, there were numerous meetings held about the issue. She said that the offer of Hollyhurst was a viable proposition. The witness accepted that when it was discovered that the needs in Milestone House had changed since the rehabilitation plan had been devised and now there were three service users who required staff to assist them with intimate care needs, that the offer of a redistribution of tasks had not been considered again. In any event she said that the Complainant had turned down the offer of Milestone House. She was asked if a practical assessment was ever carried out. The witness said that the various medical reports had described the difficulties the Complainant had with the task of dealing with intimate care needs of the service users. She said that it was a core duty of every Care Assistant.

When asked about the possibility of taking on additional staff to support the Complainant, the witness said that the Complainant nor his trade union had ever raised this issue. She outlined that the accommodation offered to the Complainant was in compliance with the Respondent’s Management Attendance Policy. She said that transfers between services can be facilitated for industrial relations reasons (e.g., where there is a case of bullying) or by medical recommendation following an Occupational Health assessment as occurred in the Complainant’s case. She said that the Complainant was transferred in 2012 due to a re-engagement order following disciplinary action taken against him and the Complainant was given a fresh start by working in a new location. This transfer was not contested at the time.

Ms T accepted that when the Complainant raised the issue of the advertised positions in November 2016, he was informed that he would have to apply by open competition, this was in the context of the Respondent processing his application for early retirement at the time.

The witness denied an allegation of victimisation. She said that the letter setting out that his employment was at risk was sent to the Complainant on 27th March 2017, whereas the correspondence from the WRC informing it that a complaint had been made under the Acts by the Complainant did not arrive until 3rd April 2017, so on that basis Ms T denied knowledge of the claim before her letter was sent. She said that as there was no change in his medical condition thereafter the Respondent proceeded to dismiss him as it was the end of a three-year process. She said that he had been out of work for three years at this stage, there had been constant contact between the Respondent and the Complainant, and his dismissal was in accordance with its Managing Absence Policy.

The witness was questioned about the various medical reports that were given. She was asked about the report from Dr McBrinn dated 11^thAugust 2016 in which he stated that the Complainant would be fit to return to work if he were not exposed to his stressor, she stated that she still had to take account of his opinion given in February 2016 that even in the absence of his stressor, Dr McBrinn was very guarded about the prospect of the Complainant returning to work, given his prolonged absence from the workplace. This coupled with his application for early retirement where Dr Flynn, Consultant Psychiatrist, in October 2016 reported that it was his strong opinion that the Complainant was incapable of carrying out the duties associated with his post due to his medical difficulty. When this application was withdrawn, and all efforts at providing reasonable accommodation had been unsuccessful, Ms T said they had no option but to dismiss him.

In answer to questions from the Court, the witness said that the Respondent had examined all vacancies arising in each of the services to see if a suitable position could be found for the Complainant, she said it was raised at different management meetings, they examined the Day Services, however, even in those services, there could be intimate care needs on a daily basis. Ms T stated that the possibility of a transfer for the Complainant was brought up at various management meetings.

The witness was asked if there was any impediment in returning the Complainant to Parkside, she said that there was no impediment. At the time the disciplinary action was taken in 2012 when he was moved from Parkside, she said that that move was designed to give him a fresh start. In any event she said that the offer to transfer to Riverview was to a service within Parkside, which he declined.

Ms T said that the Complainant did not seek an alternative location after the rehabilitation plan was rejected. She said that it was difficult to contact him by phone thereafter and all communication had to be in writing. She said that to find a position where there would be little or no intimate care needs was very difficult, the only possible way would be to employ a supernumerary person to assist him with that task and that was not a feasible option for the Respondent, she accepted that she did not ask HSE for such funding as she was of the view that it would have been refused, as funding from HSE was so tightly controlled.

With regard to the rehabilitation plan devised in November 2015, she said that the Complainant’s trade union representative was fully aware of the Respondent’s reasonable accommodation policy as outlined in its Managing Attendance Policy and agreed on the plan as the best way forward for the Complainant.

The Law

The Requirement to Make Reasonable Accommodation

Section 16 of the Acts provide:

• (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

• • (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
  • (2) [ Not relevant]

    “(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

    (b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

    (i) to have access to employment,

    (ii) to participate or advance in employment, or

    (iii) to undergo training,

    unless the measures would impose a disproportionate burden on the employer.

    (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

    (i) the financial and other costs entailed,

    (ii) the scale and financial resources of the employer’s business, and

    (iii) the possibility of obtaining public funding or other assistance.

The manifestations of the Complainant’s disability placed him at particular disadvantage in employment relative to workers without that disability, in that he was unable to carry out a crucial task in attending to service users, as certified by the medical profession.

The question that then arises is whether the action taken by the Respondent, namely, offering to alleviate that duty to a large extent by depending on his work colleagues to support him, discharged its statutory duties under Section 16 (3)(b) of the Acts.

Section 16(3)(a) of the Acts in effect provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if, with the assistance of special treatment or facilities, they would be fully capable of carrying out those duties. Section 16(3)(b) then goes on to impose an obligation on employers to do what is reasonable to provide such treatment or facilities. It is clear from the Acts as a whole that a failure to provide reasonable accommodation in accordance with this Section does not, in or of itself, constitute discrimination. Discrimination, for the purpose of the Acts, is defined by Section 6. That definition does not include any reference to a failure to fulfil the duty imposed by Section 16(3). While the Supreme Court inNano Nagledeparted from the Court of Appeal with regard to the obligation on an employer to consult with an employee, MacMenamin J held that he would :

• “notgo so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this …………... But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act”.

InNano Nagle, MacMenamin J held:-

• “Even within the scope of compliance, a situation may be reached where the degree of re-arrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined objectively.
  
  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.”

The Court is satisfied that the Respondent was informed of the Complainant’s problems with dealing with the intimate care needs of its service users. The Complainant himself brought it to the attention of his Service Manager, Mr S in May 2012 when he was in Milestone House. At the time, Mr S suggested various remedies to assist him which did not alleviate his difficulties. However, it was not until 7th October 2016 that Dr Flynn, Consultant Psychiatrist referred to the Complainant’s mental condition as a“specific phobia related to faeces/faecal matter”. In any event, the Court notes that the Respondent did not dispute that the Complainant had a disability with the meaning of the Acts, and it made efforts to address the Complainant’s difficulties and his request for a transfer, when in March 2014 he was offered a transfer to Hollyhurst. The Complainant completed an induction day in Hollyhurst but turned down the offer as the service users required assistance with intimate personal care needs. He continued to carry out his role in Milestone House with difficulty until 28^thMay 2014 when he went out on sick leave. He was offered and availed of the services of the Employee Assistance Programme and a number of counselling sessions. As a result of a referral by the Respondent’s Occupational Health Nurse in July 2014, the Complainant was referred to Dr McBrinn, Respondent’s Occupational Health Physician for assessment. On 31st July 2014, Dr McBrinn, reported that the Complainant was suffering from occupational stress and his prognosis was:

• “somewhat poor with respect to returning to work in the capacity required of him in his current role as a care assistant.”

• “The only possible solution is a re-deployment to task that would not expose him to faecal matter. I believe that the exposure to soiled nappies can be commonplace in many of the care assistant tasks undertaken by employees in that role at [the Respondent]. Hence , the difficulty in a satisfactory return to work in his current role as a care assistant.”

• “The prognosis for [the Complainant] to return to work is a satisfactory capacity, even in the absence of his stressor, is in my opinion guarded given his prolonged absence from the workplace.”

• “Unfortunately, previous arrangements to facilitate such a return to work (as per my report of 19th February 2016) have changed and the exposure at work to his stressor have not yet been resolved due to various barriers encountered in trying to do so.”

• “While [the Complainant] can function well in other domains clearly if his post continues to involve exposure to faecal matter (and it would appear to me that any post involving intimate care of adult would do so), then I am of the strong opinion that he is incapable of carrying out the duties associated with such post due to his mental health difficulty (specific phobia). This difficulty is unlikely to change at any stage in the future as it is chronic and longstanding in nature and has not improved with pharmacological and non-pharmacological interventions this far.”

• “….occupational health report 19/2/16 and the recent report from my Consultant Psychiatrist,it is clear that I am not going to return to work with [the Respondent], given the current available posts,”

In all the circumstances of this case and in what would appear to be the peculiar circumstances related to the Complainant as a Care Assistant who cannot carryout intimate care needs of the service users he cares for; the Court has reached the following conclusions:-

• •The Court is satisfied that there were numerous occasions when management explored the possibility of providing reasonable accommodation to the Complainant even before it became aware that his health difficulties were described by his Consultant Psychiatrist as a specific phobia which is chronic and longstanding in nature. During this process, there was regular contact, and many meetings held, and letters exchanged, where he was represented by either his trade union representative or latterly by his Solicitor.

• •All the evidence suggests that while there were different levels of dependency in the various services provided by the Respondent, there was always the possibility due to changing needs that intimate care needs would be a feature of every Care Assistant’s role in the organisation.
  •It is clear that the Complainant turned down each of the offers of accommodation offered to him due to the possibility that he may have to undertake intimate care needs, even when his colleagues were prepared to carry out the task identified as his stressor.
  •It is clear from his evidence that mere suggestion that there may be an occasion that the Complainant could potentially have to carryout intimate care needs, it caused such an exacerbation in his condition that on two separate occasions, November 2014 and November 2015, he threatened to take his own life. The Court fully accepts the Respondent’s need to take account of the Complainant’s wellbeing in that regard.
  •When a rehabilitation plan was devised to accommodate him, with the assistance of his trade union representative, he had an obligation to give it a try, however within five days of the agreed plan which the Complainant refused to do without even completing a trial, he suffered a breakdown when asked to do so.
  •The Court also accepts that the Respondent had an obligation to its service users to ensure that their intimate care needs were properly looked after.
  •The Court is satisfied that in attempting to find suitable accommodation for the Complainant that the Respondent was fully informed of his medical condition at all times and had referred him to its Occupational Health Physician on a number of occasions. The medical reports both from Dr McBrinn and from the Complainant’s own Consultant Psychiatrist continued to report that not only had his phobia not improved but that there appeared to be no prospect of any improvement into the future and he continues to suffer from the phobia to this day.
  •During all this process, the Respondent informed the Complainant that his position could not be kept open indefinitely and that it had considered all options to assist in his return to work.
  •The first occasion when the Complainant explicitly looked for a specific location to transfer was in the Solicitors’ letter dated 15th December 2016, when he requested to be transferred to Parkside Services, despite the Respondent asking on a number of occasions. At which stage confirmation had been given to management that intimate care was required in Parkside and there were no services where such care would not be required at some stage. This was particularly so in circumstances where evidence was given that service users were getting older, coupled with the constantly changing needs of its users.
  •Taking account of the Supreme Court’s ruling in theNano Naglecase, the Court is satisfied that in the exceptional circumstances surrounding this case, it was not possible to adapt the Complainant’s duties so as to accommodate him as the facts demonstrate that he was“incapable of performing that function thus adapted”as no amount of support was going to assist him if he found himself on his own, which was always a possibility in his role as Care Assistant.
  •The duty on an employer must remain within the boundaries of what is reasonable and proportionate, including the financial implications that may be involved. The question of the employment of an additional staff member was considered however, the Court accepts that in the circumstances to employ a supernumerary for the sole purpose of carrying out intimate care needs in order to assist the Complainant to fulfil his role would place a disproportionate burden on the Respondent in circumstances where its funding is strictly controlled and funded by public funds.

Claim of Discriminatory Dismissal

By letter dated 28th April 2017 the Respondent terminated the Complainant’s employment stating that as it had not been furnished with any medical evidence as requested to show an improvement in his medical prognosis, it was therefore left with no option but to terminate his employment on the ground of incapacity.

Counsel for the Complainant argued that the Respondent had sought to justify the dismissal in circumstances where it had not properly consulted him on alternatives and where it knowingly mischaracterised medical reports to justify its decision. This he maintained, amounted to discriminatory dismissal.

Mr McKenna on the other hand said that the Complainant’s dismissal was solely due to his inability to carry out the core duties of a Care Assistant and having been on sick leave for in excess of three years with no visible or potential date for a return to work. The Respondent relied upon the criteria identified by Lardner J. in the case ofBolger v Showerings (Ireland) Limited1990 E.L. R184 which provides that the ill health must be the reason for the dismissal and the employee must be on fair notice that the question of his dismissal arising from his incapacity to carry out his work was being considered. It is the Respondent’s submission that it met the test set out in that case.

The question that this Court needs to consider is whether the Complainant’s dismissal resulted wholly or mainly from his capability to perform the work he was employed to do in circumstances where he was absent from work due to ill health from May 2014. The requirements in respect of capability arising from ill health were succinctly stated by Lardner J.in Bolger v Showeringsas follows:-

• “In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:
  
  (1) It was the ill-health which was the reason for his dismissal;
  (2) That this was substantial reason;
  (3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and
  (4) That the employee was afforded an opportunity of being heard.”

• “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
  
  • (a) a complaint of discrimination made by the employee to the employer,
    
    (b) any proceedings by a complainant,
    
    (c) an employee having represented or otherwise supported a complainant,
    
    (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
    
    (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
    
    (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
    
    (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

• 
  i.The Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),
  
  ii.The Complainant was subjected to adverse treatment by the Respondent, and,
  
  iii.The adverse treatment was in reaction to the protected action having been taken by the Complainant.

• “Further to my letters to your Solicitors on 7th February 2017 and to you on 27th March 2017 and correspondence from your Solicitor dated 7th April 2017, we have not been furnished with any medical evidence as requested, to show that there has been an improvement in your medical prognosis.

  We are therefore left with no option but to terminate your Contract of Employment on the grounds of incapacity……………if you wish to appeal ………”

	Signed on behalf of the Labour Court
	Caroline Jenkinson
DC	______________________
31 March 2021	Deputy Chairman