Employee

Employer

Anonymised Parties

A Multi-task Attendant

A Health Services Provider

Representatives

SIPTU

The Employer’s Employee Relations Manager

Act

Dispute Reference No.

Date of Receipt

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

CA-00042328-001

04/02/2021

MA worked as a catering attendant in one of the employer’s hospitals since October 2002.  In 2018, she was diagnosed as suffering from osteoarthritis, but by January 2020, her doctor recommended that she could return to work on light duties.  She asked to be transferred to an administrative job, but this was not facilitated.  In November 2020, due to the failure of her employer to identify a suitable role for her, MA retired on ill-health grounds.  She is seeking compensation for her employer’s failure to comply with its own procedures and for the stress and anxiety that this has caused.

Chronology

When she was absent due to her osteoarthritis, MA achieved a level 4 qualification in computer applications from Quality and Qualifications Ireland (QQI).  In January 2020, when she was fit to return to light duties, she asked to be considered for a move to an administrative job.  This was supported by the employer’s occupational health consultant (OHC).  In April, she was informed by the household manager in the hospital where she worked that a job had been identified for her in the reception area.  Although a period of training and a start date were discussed with her, within a few days, on the instructions of the local HR manager, the proposal was withdrawn.

With the assistance of her union representative, MA engaged directly with the HR manager.  On May 13th, he proposed a role in the household services department, mainly involving cleaning wards and changing beds.  This role wasn’t suitable for MA’s health condition, and she replied that she was willing to consider other roles, in any other department. 

Because she was considered fit to work, albeit on light duties, MA wasn’t entitled to social welfare illness benefit and, by May 2020, she had had no income for five months.  On May 13th 2020, she wrote to the national director of HR, asking to be assigned to a suitable role on light duties.  It seems that nothing came of this and in July 2020, MA submitted a formal complaint to the hospital general manager.  On July 15th, following a meeting with the general manager, MA was informed that a job had been found for her in another location in the same county, which was suitable.  That commitment wasn’t followed through and in October 2020, MA learned that she was to be re-deployed to a Covid-19 contact-tracing role.  Although her manager confirmed that she could be released to work in the contact-tracing role, MA said this wasn’t followed up either.  By that stage, she had no income for 10 months, and she decided to retire on the grounds of ill health.  Her employment ended on November 25th 2020.  In February 2022, 15 months after she retired, she was contacted by her former employer to arrange to commence work as a contact-tracer.

At the hearing, MA said that her mother died in September 2020 and when she had a call with the occupational health physician in November, she was feeling in limbo.  She said that the consultant advised her to retire on ill-health grounds.  She said that this was for the benefit of her mental and physical health.  She had to fill out a retirement form and she contacted her line manager, who said that she was sorry to see her leaving.

MA said that she could have done a job in administration.  She was qualified to use a computer, as she had done a level 4 computer course when she was out sick.  She did the course with the support of the Department of Social Protection.  She said that mentally, she feels too young to retire, and that she is now doing a course on payroll.  She wanted to stay working with the HSE and to retire on a full pension, but she can’t return to the HSE because she is on an ill-health pension.

The Union’s Position

In his submission, Mr Courtney referred to the employer’s procedure on the Rehabilitation of Employees Back to Work after Illness or Injury.  A copy of this document was included in the union’s book of papers at the hearing.   In contrast to the structured approach set out in this document, Mr Courtney said that the approach to MA’s request was “haphazard and amorphous.”  Having identified a job in reception, this was inexplicably withdrawn.  MA was then offered a cleaning and maintenance job, which was unsuitable for her health.  In September 2020, her mother died; her managers knew this.  In October, she was scheduled to meet with a rehabilitation case manager, but the meeting never happened.  Around that time, she was led to believe that there was a suitable role available in another unit in Kildare, but she wasn’t re-deployed.  In October, she was released to do contact-tracing, but this didn’t happen either.

Mr Courtney submitted several examples of decisions of adjudication officers and the Labour Court which deal with the failure of this employer to comply with their own procedures.  He said that MA is seeking compensation which is “proportionate and dissuasive” for the manner in which she was treated, the considerable stress and anxiety she has suffered and in recognition of the employer’s failure to comply with its own procedures.

Background

Opening its response to MA’s grievance, the employer’s submission states that her request for a transfer to light duties was considered carefully “at a time where Covid dominated in the work environment and presented daily challenges unprecedented within the hospital.”

In January 2018, MA was certified as unfit for work due to an arthritic illness which she had suffered for some years.  In October that year, she was assessed by the employer’s OHC and found to be unfit for work.  In April 2019, she was assessed again and the OHC stated that she was unfit in the long-term for her job as a catering assistant.

In January 2020, MA was examined by a consultant in Tallaght Hospital who recommended that she was able to resume work on light duties.  In February, after she was offered a role in the Central Sterile Service Department, MA sent an email to her manager, stating that she could not work in that department, but that she would like to be considered for any suitable position in the hospital.

A letter sent by Ms Ciara Galvin of SIPTU on March 5th 2020 to the hospital’s HR manager was not replied to until May 13th.  This was due to the absence of the HR manager on sick leave.  MA was offered a role in housekeeping, doing light duties.  She had applied for temporary rehabilitation pay (TRR) which, subject to certain conditions, is a payment to employees who have exhausted their entitlement to sick pay.  The HR manager informed the SIPTU representative that he was not satisfied that MA had a reasonable prospect of returning to work, and this was a condition of TRR.  MA’s application for TRR was subsequently approved and she received the payment for the period from March 3rd 2018 until September 10th 2019.

On May 26th 2020, Ms Galvin wrote to the HR manager to let him know that the job in housekeeping wasn’t suitable for MA.  On July 1st 2020, the HR manager arranged for a risk assessment to be carried out to consider what tasks MA was capable of.  Her case was then referred to the employer’s Health and Wellbeing Unit for a third-party assessment.  The case manager there returned her file to the local OHC for a review.  Later in July, MA submitted a formal complaint that she was not permitted to return to work on light duties.

The Employer’s Position

MA said that she completed a computer course while she was on sick leave and that she was anxious to return to work in a clerical role.  It is the employer’s position that she was employed as a multi-task attendant and that the management were trying to accommodate her within the terms of her contract.  This reasonable accommodation does not require the employer to retain an individual in a job that there are not fully competent and capable of undertaking.

The employer’s Rehabilitation Policy provides that, where an employee is unfit for their substantive post, alternative options may be considered.  These alternatives are jobs that are broadly comparable to the employee’s original job in terms of duties, knowledge and experience.  The occupational health service would consider a demand for an alternative job and each application is considered on a case by case basis.

It is the employer’s case that efforts were made to find a suitable role for MA and that they went beyond what was required by offering her a new role with lighter duties.  A risk assessment was carried out to see what duties she was able to carry out and she was offered a role in contact-tracing on an interim basis to assist in rehabilitating her back to work.

In November 2020, on the recommendation of the occupational health physician, MA retired on the ground of permanent infirmity.  MA said that she didn’t tell the occupational health doctor that she was offered the job in contact-tracing.  In accordance with her entitlement under the Superannuation Revision Scheme 1977, owing to her retirement on the grounds of permanent infirmity, she was awarded an additional 10 years’ service.

At the hearing, the HR manager from the central HR office said that they acknowledge that MA suffers from a disability.  She said that the housekeeping job that was offered to her was not assessed by the occupational health office, but was rejected by MA and her union.  With regard to the job on reception, it is the employer’s policy to offer all promotional jobs through advertised competition.  While MA was offered a job in contact-tracing in October 2020, the following month, the occupational health doctor recommended that she retire on the grounds of permanent infirmity.  The employer claims that they made strenuous efforts to accommodate MA with a role in catering, housekeeping and contact-tracing.  A risk assessment was carried out to ensure that any role offered to MA was suitable for her abilities.  All the roles offered were offered on the basis that they did not require the same physical effort as a full multi-task attendant job.  Unfortunately, MA’s medical condition did not allow her to take up the offers.  She was considered to be permanently incapacitated and, in November 2020, she retired on the grounds of permanent infirmity.

A Suitable Alternative Role

The core of this dispute lies in the disagreement between MA and her employer regarding what constitutes a suitable role to accommodate her disability.  It is apparent that, when she was diagnosed as fit to return to light duties in January 2020, by April that year, the household manager identified a suitable job in reception.  MA was notified that she could commence in reception on April 22nd and that some training would be required.

The hospital HR manager had been absent due to illness and he wasn’t involved in the discussion about this change of role.  On his return to work, he informed the household manager that MA was not to transfer to the reception job, but that a role had to be identified “within the terms and conditions applicable to her contract of employment.”  At the hearing, the HR manager said that MA’s return to light duties had to be accommodated within the terms of her contract as a multi-task attendant.  He argued that reasonable accommodation does not require an employer to place someone in a job that they are not fully competent to carry out.  He proposed a new role for MA, the components of which he described as “a range of light duties:”

1.       The cleaning and maintenance of a number of properties across from the hospital;

2.       Changing of beds in the properties;

3.       Cleaning of the kitchen areas, sitting rooms, dining rooms and bathrooms;

4.       Removal of domestic waste and soiled linen to the main hospital and return with clean linen;

5.       Maintenance and cleaning in other rooms in the hospital. 

Any reasonable assessment of these tasks would conclude that this is not an offer of light work and it is my view that the proposal that MA should be assigned to this job was unrealistic and unhelpful. 

Reasonable Accommodation

While this dispute is not for consideration under the Employment Equality Act 1998-2021 (“the EE Act”), it is important, in my view, to consider the meaning of the concept of reasonable accommodation.  This is defined at section 16 of the EE Act, which was amended by the provisions of the Equality Act 2004, which, in its turn, was enacted to transpose Article 5 of Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment.  Sub-sections 3 and 4 establish an obligation on employers to provide appropriate measures to support a person with a disability:  

(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.

(4) In subsection (3) -

‘appropriate measures,’ in relation to a person with a disability  -

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of  paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but 

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

(The remainder of this sub-section (c) is not relevant to the dispute under consideration here).

It is apparent that the intention of this amendment is to place an obligation on an employer, subject to the “disproportionate burden” criterion, to put in place certain measures to enable a person with a disability to be fully competent to undertake any duties - see section 16(3)(a) above.  Reasonable accommodation is not limited to the employee being able to carry out their current role and the legislation opens up the possibility that an employee with a disability may be considered for a job within the scope of their capabilities, subject to some “appropriate measures.”

When she was fit to return to work on light duties, MA indicated that she wanted to move to an administrative job.  During her sick leave, she had completed a qualification in computers and she had increased her skills to make her suitable for such a job.  It is my view that the provisions at section 16(3) and (4) above place a responsibility on an employer to support an employee who has a disability not simply to return to work, but to “advance in employment” and to move to an alternative role.  It seems to me that the provisions of section 16(4)(a) and (b) and the reference to “effective and practical measures” must include the requirement of an employer to consider, in a reasonable and practical way, how the employee can continue in employment and make a contribution to the organisation in the long term.

Moving from a Support Role to an Administrative Role

At the hearing, the HR manager said that it would be “highly contentious” for an employee to move from one grade to another and that the employer is obliged to recruit for a vacant position.  He submitted a copy of an email from a former SIPTU shop steward, dated February 3rd 2022, apparently intended to inform me of the constraints around moving from the grade of multi-task attendant to administration.  The former shop steward stated:

“The proposed redeployment of any staff from support grades to promotional posts was highlighted as unfair and discriminatory to staff who were denied these promotional opportunities.

“Staff on the ground made representations to the local shop stewards on the matter and the practice was to cease and that all promotional opportunities were to be competed for in an open and transparent manner.”

I have a number of concerns about relying on this former shop steward’s opinion and the views of “staff on the ground” to manage the return to work of an employee with a disability.  In the first instance, MA was a member of SIPTU and her transfer to a job in reception was supported by her union representatives.  Secondly, it is the responsibility of managers to manage, and the possibility that an employee with a disability could be redeployed to a job that she was capable of doing and willing to do is preferable to terminating her employment, with the subsequent cost of 10 added years to her pension entitlement.

I accept that the organisation has a recruitment policy and that jobs must be advertised for open competition.  While this ensures fairness in the recruitment process, it does not eliminate the scope for flexibility to allow the employer to retain an employee with a disability.  In MA’s case, she was aged 48 and, in her own opinion, she was too young to retire.  She had gained new skills and she was willing to work, but she was confined by her employer to a support role, with the job in reception regarded as a promotion.  As we have noted earlier, the provisions of section 16 of the EE Act allow for the “participation and advancement in employment” of people with disabilities.  MA could have been asked to apply for the job on reception, and barring any major skills deficit, and, subject to some training, it is my view that, contrary to the views of the former shop steward, no discrimination would have arisen if she had been appointed.

Rehabilitation Plan

I note that the employer’s policy on the rehabilitation of employees returning to work after illness provides that, following a referral to the OHC, a rehabilitation plan is drawn up to support the employee’s return to work.  It is evident that no such plan was developed for MA and, while I accept the employer’s explanation that MA’s request to return to work coincided with the onset of the Covid-19 pandemic, it is apparent that, across the organisation, decisions were being made quickly and without resorting to unnecessary bureaucracy.  MA was willing to come in to work, she wasn’t demanding to stay at home and it seems to me that, in the absence of a rehabilitation plan, it was incumbent on the employer to listen to the employee’s own proposal and to facilitate her return to work.

The Option of the Contact-tracing Role

By the end of October 2020, the employer’s occupational health department was making arrangements for MA to commence training as a contact-tracer, working from home.  Less than a month later, she decided to retire on the grounds of permanent ill health.  At the hearing, MA said that she was contracted in February 2022 about the contact-tracing job, but I am satisfied that, if she had been interested in that role, she would have been up and running in November 2020.

MA said that when she met the OHC in November, she didn’t mention the offer of the contact-tracing job.  She said that she decided to retire on the recommendation of the OHC, for the good of her mental and physical health.  It is disappointing that she did not pursue the option to work as a contract-tracer, because this would certainly have added to her skills and improved her options for further administrative jobs when the contact-tracing roles came to an end.

Conclusion

In advance of arriving at a recommendation regarding how this dispute could be resolved, I have considered the presentations of both sides at the hearing, and the written submissions provided in advance.  I have also considered the decisions of the Labour Court which Mr Courtney submitted as useful precedents.

It is my view that it was unreasonable of the employer not to permit MA to take up the job in reception in April 2020.  There would have been no breach of legislation if she had been appointed to this job, and the requirements of reasonable accommodation set out in the EE Act override any industrial relations agreement that may have been in place at local level.  In the context of the Covid-19 pandemic, I can understand that the impact of the pandemic on this particular employer was such that it may not have been possible to draw up a rehabilitation plan, but the crisis also may have provided an opportunity to resolve MA’s return to work problem, and this opportunity was missed.

At the end of waiting for 10 months to return to a suitable job, MA decided to retire on the grounds of ill health, benefitting from 10 added years to her pension.  She asks me to recommend compensation for the stress she experienced between January and November 2020, and in recognition of the employer’s failure to comply with its own procedures.  Having considered MA’s grievance, I am mindful of her aspiration to continue her career with this employer and to benefit from a pension based on longer service.  Rather than compensation, I am recommending that the failure of the employer to offer MA a job in administration is remedied. 

I recommend that the employer’s HR department contact MA to discuss current vacancies that are suitable for her skills and qualifications in a location that is suitable for her.  I recommend that her retirement on the ground of permanent infirmity is unwound and that she is appointed to a suitable job.  I recommend that MA returns to work within three months of the date of this recommendation and that her added years of pensionable service is reduced from 10 years to two years.   

Reasonable accommodation