FULL RECOMMENDATION
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : HEALTH SERVICES EXECUTIVE (REPRESENTED BY BYRNE WALLACE LLP) - AND - MS MARIE O'SHEA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S)ADJ-00024740, CA-00031481-001 BACKGROUND: The Adjudication Officer upheld Ms Marie O’Shea’s (‘the Complainant’) complaint of discrimination on the grounds of disability and awarded her compensation of €65,000.00 while also making an order directing the Respondent “to review the application of the Employment Equality Act 1998 with a view to preparing written guidelines and training for line managers and HR specifically in the emergency services within the HSE as to how they apply the terms of Section 16 of the Act within their sphere of influence no later than six months from the date of issue of [her] Decision”. The Court heard the appeal in a virtual courtroom on 11 October 2022. The Complainant gave sworn evidence as did the following witnesses on behalf of the Respondent: Mr Patrick Mooney, Assistant Chief Ambulance Officer in the Mid-West Region of the National Ambulance Service (‘NAS’) at the material time and Mr Macartan Hughes, Head of Education in NAS. The Claim In the opening paragraph of her written submission to the Court, the Complainant alleges that there was a “failure on the part of the respondent to accommodate [her] as regards a return to work following injury … [and] the respondent failed in its obligations to provide reasonable accommodation or to engage in a proper assessment of what appropriate measures could be taken to facilitate [her] return to work”. The case advanced on behalf of the Respondent is that the accommodation sought by the Complainant in respect of the period during which she was recovering from her injury (i.e. re-deployment to an alternative position) is not reasonable accommodation within the meaning of the Act and that it not only complied in all respects with its obligations to her under the Act but went above and beyond its statutory obligations. Factual Matrix The Complainant has been employed as a paramedic since February 2002 – initially by the Mid-Western Health Board and subsequently by the Respondent following its establishment. In July 2018, the Complainant sustained a serious injury to her right wrist in a non-work-related accident. It is common case that as a consequence of that injury she had a disability within the meaning of the Act, albeit for a temporary but sustained period and that the Respondent, therefore, had certain obligations under section 16 of the Act to make reasonable accommodation to facilitate her continuation in employment. The Complainant availed herself of the Respondent’s sick pay scheme for six months and thereafter she was approved for temporary rehabilitation remuneration (‘TRR’) and was deemed eligible for the Critical Illness Protocol. This was because the Complainant suffered complex pain syndrome and other complications following her injury. It is common case that the Respondent has facilitated paramedic colleagues and former colleagues of the Complainant in the past who found themselves in comparable circumstances (i.e. on long-term sick leave, recuperating from injury or illness, and certified unfit to resume the full range of duties of a paramedic but certified fit to undertake light duties) by transferring them, on a temporary basis, to alternative – usually administrative – roles. It is also common case that the Complainant regularly communicated her wish to be provided with a suitable alternative temporary role as a gateway to returning to her substantive post as soon as Occupational Health deemed her fit to undertake light or modified duties i.e. from February 2019 onwards. The Court was informed by the Parties that consideration of facilitating the Complainant in this way arose on two occasions. Firstly, her line manager, Mr Alan West, proposed in May 2019 that the Complainant could be usefully deployed to undertake some of the administrative work normally performed by paramedic supervisors as a new cohort of supervisors had taken up post in or around that time and it was anticipated that some additional assistance with the administrative element of their workload would greatly assist them in settling into their new roles. However, it appears that Mr West’s proposal was not approved by senior management in the Mid-West region of NAS as a number of the supervisors’ administrative duties were classified as control functions which the Complainant did not have authorisation to perform. In or around August 2019, Mr Pat Mooney, Assistant Chief Ambulance Officer, initiated a major filing and archiving project in order to free up space in NAS offices in the Mid-West region by engaging an external company to store historical files off-site. He considered deploying the Complainant to this project subject to her being certified fit to undertake the work involved. He, therefore, caused her to be referred to occupational health for a specific assessment on 15 August 2019 to determine whether or not she was fit for the work involved. The report that issued identified,inter alia, that the Complainant was “fit for duty that is both clinical and administrative that does not involve the following: patient transfers; high risk manual handling as identified by a high-risk manual handling risk assessment; tasks that involve forceful gripping with the right arm; and tasks that require repetitive flexion/extension of the right wrist and forearm”. Mr Mooney, having regard to the contents of that occupational health report, decided not to assign the Complainant to the filing and archiving project. The Complainant was offered and accepted a temporary alternative role working as a telephonist from 16 March 2020 until she was deemed medically fit to undertake her full range of duties as a paramedic in May 2020. She was paid her full basic paramedic salary plus shift allowance between 16 March and May 2020. She was required to undergo a period of refresher training from May 2020 onwards and successfully completed all necessary assessments and re-accreditations by 20 December 2020. The Complainant was in receipt of her full salary, premiums and allowances during the graduated return process in the period May to December 2020. The Complainant was subject to ongoing regular occupational health assessments throughout the period between her injury and her return to her substantive post. Both Parties rely in making their case to the Court on the evolution of assessment the Complainant’s fitness to undertake her duties as recorded in the occupational health reports. It is therefore necessary to summarise in a reasonable level of detail that evolution. (a) In a report dated 20 September 2018, the Complainant was certified as being “unfit for normal duty … [but] fit for modified duties that avoid manual work with the right upper limb as she has reduced strength in the right upper limb and she cannot make a fist … It is my opinion that [the Complainant] is fit for administrative type duties.” (b) In a report dated 9 October 2018, the Complainant was certified as “unfit for modified or normal duty. In my opinion [the Complainant] meets the medical criteria for Temporary Rehabilitation Remuneration.” (c) In a report dated 17 December 2018, the Complainant was certified as being “unfit for duty” and meeting the criteria for the Critical Illness Protocol. (d) In a report signed on 20 February 2019 (after an assessment that was completed on 18 February 2019) the Complainant was certified “fit for modified duty,” and “fit for duty which does not involve the use of her right arm”. She was certified as meeting the criteria for the Critical Illness Protocol. (e) In a report dated 4 March 2019, the Complainant was certified as “unfit for normal duty” and as meeting the criteria for the Critical Illness Protocol. In a report dated 12 March 2019, the report of 4 March 2019 was amended to include a further opinion that she was “fit for duty which does not involve the use of her right arm”. (f) In a report dated 1 April 2019, the Complainant was certified as “unfit for normal duty” and as meeting the criteria for the Critical Illness Protocol. She was certified as being “fit for light duties”. (g) In a report that bears two dates (“date of report 30/04/2019 amended” and “amended report 12/03/2019”), the Complainant was certified as “unfit for normal duty” but as being “fit for modified duties including administrative tasks and non-clinical work”. She was certified as meeting the criteria for the Critical Illness Protocol and for TRR. (h) In a report dated 15 May 2019, the Complainant was certified as “unfit for normal duty” and as meeting the criteria for TRR. She was certified as “fit for modified/alternative duties.” … “I would be grateful if you could advise if such duties are available. If modified/alternative duties are available, I would appreciate if you could furnish me with a list of the duties, as to allow me to determine which duties [the Complainant] would be fit to carry out.” (i) In a report that was dated 15 August 2019, the Complainant was certified as being “unfit for normal duty”. She was certified as “fit for duty that is both clinical and administrative that does not involve the following: patient transfers, high risk manual handling as identified by a manual handling risk assessment, tasks that require forceful gripping with the right arm and tasks that require repetitive flexion/extension of the right wrist/forearm. [The Complainant] is fit for driving.” (j) In a report dated 14 October 2019, the Complainant was certified as being “unfit for normal duty”. She was certified as “fit for duty that is both clinical and administrative that does not involve the following: - patient transfers, - high risk manual handling as identified by a manual handling risk assessment, - tasks that require forceful gripping with the right arm and tasks that require repetitive flexion/extension of the right wrist/forearm. [The Complainant] is fit for driving.” (k) In a report dated 9 December 2019, the Complainant was certified as being “unfit for normal duty”. She was certified as “fit for duty that is both clinical and administrative that does not involve the following: - heavy lifting (i.e. lifting of patients) - high risk manual handling as identified by a manual handling risk assessment. [The Complainant] is fit for driving.” (l) In a report dated 18 December 2019, the Complainant was certified as meeting the criteria for TRR. (m) In a report dated 18 February 2020, the Complainant was certified as being “unfit for normal duty”. She was certified as “fit for duty that is both clinical and administrative that does not involve the following: - heavy lifting (specifically lifting patients down a set of stairs in a home setting) - high risk manual handling as identified by a manual handling risk assessment. [The Complainant] is fit for driving. I make this recommendation without the knowledge that management can facilitate same.” She was certified as meeting the criteria for TRR.” (n) In a report from the HSE’s physiotherapy service (commissioned by the Occupational Health Department) dated 29 February 2020 the physiotherapist wrote: “Due to the unpredictable nature of her recovery from CRPS [Complex Regional Pain Syndrome] it is not possible to predict when, or indeed if, [the Complainant] will recover to a functional level that would allow her to return to her job as a paramedic.” The Complainant’s Evidence The Complainant outlined to the Court how the injury to her wrist occurred and the extent of the injury including the complex pain syndrome she experienced after the caste had been removed. She then referred to the sequence of assessments of her fitness to work carried out by Occupational Health. She referred in particular to the report that issued on 15 May 2019 in which the occupational health doctor requested to be provided with a list of available modified duties to which she might be assigned pending her full recuperation. According to the Complainant, this request did not result in any engagement with the Respondent although it was her own opinion that she was, at that point in time, capable of doing all aspects of her job (such as assessing patients, performing ECGs, drawing up medication etc) other than those functions that required ‘heavy lifting’. The Complainant said that she had been informed initially by management that there were no suitable alternative duties available within the ambulance service but that in August 2019 she was informed that filing work had become available subject to her being cleared to undertake it by Occupational Health. She wasn’t cleared and she wasn’t assigned the work in question. Her evidence is that she submitted a formal grievance to the Respondent on 26 September 2019 which she says was neither acknowledged nor progressed by management. On 10 October 2019 she referred her complaint under the Act to the Workplace Relations Commission. The Complainant’s evidence then moved to March 2020 when the Covid-19 pandemic broke out. She told the Court that her sister, who was at the time employed as a supervisor in the NAS control room in Tallaght intervened on her behalf with senior management in the NAS and this led to her being deployed to a telephonist role with effect from 16 March 2020 and restored to the payroll on her paramedic salary. The Complainant told the Court that, in her opinion, that role had been available for some time and could have been offered to her at a much earlier date. The balance of her direct evidence concerned the process of re-orientation she underwent from May 2020 onwards to facilitate a graduated return to her substantive role. She told the Court that she has no difficulties performing that role today. Under cross-examination, the Respondent’s Solicitor listed various tasks undertaken routinely by a paramedic (driving, transporting patients, entering and exiting the ambulance, clearing blocked airways, chest compression etc). He put it to the Complainant that each of the aforementioned tasks required dexterity and the use of both hands. While the Complainant accepted this to be the case, she replied that had she been assessed by management she would have been able to demonstrate her ability to perform the tasks in question and that her only difficulty lay with what she termed ‘excessive’ heavy lifting. The Representative put it to her that the Respondent referred to that as ‘necessary’ heavy lifting and proceeded to list various pieces of equipment that have to be carried by paramedics in the course of their work, including a life pack (15Kg), a resuscitation bag (8-10Kg), a Lucas Device (10Kg) and oxygen tanks. Again, it was put to the Complainant that two hands are required to carry these items. In reply, she said that she would have been able to carry them. The cross-examination then turned to the medical report issued by Occupational Health following her assessment on 18 February 2019 and that certified the Complainant “fit for modified duty,” and “fit for duty which does not involve the use of her right arm”. It was put to the Complainant that it was reasonable for management to decide not to provide paramedic work to a person who had been assessed as unable to use their right arm. The Complainant told the Court that she disagreed with the assessment although, when asked if she took issue with it at the time, she accepted that she hadn’t. The Respondent’s Solicitor then took the Complainant through a number of subsequent reports on her condition from Occupational Health including those dated 4 March 2019, 12 March 2019, 1 April 2019 and 30 April 2019 – each of which stated that the Complainant was “unfit for normal duty’. The Respondent’s Solicitor next outlined what the Respondent’s evidence would be in relation to both the proposal made by Mr Alan West and the later proposal by Mr Mooney to assign the Complainant to filing and archiving duties and why the Respondent decided that neither proposal was appropriate. The cross-examination turned again to the Occupational Health Reports beginning with the report dated 15 May 2019 in which the examining doctor recorded that, in his opinion the Complainant was “unfit for normal duty for the foreseeable future” but was fit for “modified/alternative duties”. The reports from 14 October 2019, 9 December 2019, 18 December 2019, 18 February 2020 and 28 February 2020 were also opened to the Court. The Complainant confirmed under cross-examination that when she commenced work on the telephones her paramedic’s salary and shift allowance were restored and that she worked 8.00 am to 5.00 pm weekdays and some weekends doing this work. In response to questions from the Court, the Complainant stated again that she believed that she could have performed all aspects of her role as a paramedic from a date much earlier than May 2020 other than lifting heavy patients and that this could have been confirmed had the Respondent thought of carrying out simulation assessments. The Complainant also listed a number of colleagues who had been facilitated with light or alternative duties during periods of recovery from illness or injury. Evidence of Mr Pat Mooney The witness gave a brief account of his thirty-five years’ experience with the ambulance service; fifteen years as a paramedic and twenty in management. He then outlined the nature of the work undertaken by a paramedic and the physical demands it places on practitioners who are required to undertake patient transfers and to be available on very short notice (90 seconds) to respond to emergency calls. He told the Court that the job involves driving an ambulance, attending at the scene of industrial injuries and car accidents and emergency maternity situations. He said that the role involves a substantial amount of lifting and manual handling including of necessary equipment. The witness was asked about the availability of student paramedics that could perhaps have assisted the Complainant had she been returned to her substantive role at an earlier date. The witness told the Court that his understanding was that students are released on bloc release twice per year to gain experience as a third person on an ambulance for approximately six to eight weeks at a time. He said he believed that there were approximately ten to twelve students per cohort and that the ambulance service in the Mid-West deployed eighteen resources (i.e. ambulances) each day. The witness was asked about the Occupational Health report dated 20 February 2019 which certified the Complainant as “fit for modified duty,” and “fit for duty which does not involve the use of her right arm”. The witness said that it was not possible, having regard to the dual driving and clinical aspects of her role, to deploy the Complainant as a paramedic in the light of such an assessment. He also said that it would not have been possible to ensure that a student on bloc release would be available at all times to assist her. The witness was next asked about the availability of modified duties in the light of other colleagues having been accommodated in this regard. The witness accepted that this was the case but said that it can only be done when there is a need for it or a deficit within the service and no such need had existed in February 2019. He said that he had considered the proposal made by Mr West in May 2019 but that many of the duties included in that proposal required a person to be authorised at supervisory level and the Complainant did not have that level of authorisation and in any event, in the witness’s view, the duties concerned were, in fact, being completed by others at the time. He was also of the opinion that a decision to assign the Complainant to perform the duties proposed by Mr West could have given rise to industrial relations issues within the ambulance service. The witness next gave evidence in relation to the filing and archiving project and his engagement with the approved external contractor. He said he had considered assigning the Complainant to the project and the work she would have been required to do would have involved preparing boxes of files for collection by the contractor. He arranged to have the Complainant assessed by Occupational Health, he said, to determine her fitness for this type of work. Having considered the report that came back he decided that she could not carry out the role. The witness said that the Complainant was unfortunate in so far as a number of colleagues were being accommodated within the ambulance service with alternative duties in 2019 and no additional opportunity at that time to which she could have been assigned. The witness told the Court that he finished up as Assistant Chief Ambulance Officer in December 2019. Under cross-examination, the witness was asked by the Complainant’s Representative about the Respondent’s procedures as outlined in its ‘Rehabilitation of employees back to work after illness or injury’ procedure document and the requirement therein to develop a Return-to-Work plan for an employee in the Complainant’s position. The witness said that the Respondent was not in a position to develop such a plan for the Complainant in the light of the occupational health reports it had received which did not provide it with an expected return to work date for the Complainant. The witness was also asked about the Complainant’s formal grievance, lodged in September 2019, and it was put to him that she had never received a formal reply from the Respondent in relation to it. The witness said that discussions had been ongoing internally with a view to addressing the Complainant’s situation. Asked about the possibility of using simulated assessments to gauge the Complainant’s fitness to undertake the various duties of a paramedic, the witness said that this was merely a matter of opinion on the Complainant’s part as the Respondent relied on the assessments of the occupational physician to whom the Complainant was referred. He said it is ‘not the norm’ to engage in a three-way decision-making process involving the Complainant, Occupational Health and management. In response to questions from the Court, the witness stated that no paramedic who was unable to carry out the full range of duties required by the role was permitted to operate in the role. He also said that the role is a demand-driven role and a paramedic never knows in advance what awaits them when called out and for that reason it was not possible to contemplate modifying a paramedic’s duties to facilitate an employee such as the Complainant. Evidence of Mr Macartan Hughes The witness told the Court that he is Head of Education in the NAS and has been in this role for twenty years. He said oversees the provision of a wide range of training and educational courses including to NAS personnel all the way up to Master’s level. The witness confirmed that the paramedic profession is highly regulated and overseen by the Pre-Hospital Emergency Care Council (‘PHECC’). The HSE Representative took the witness through a number of the PHECC Clinical Practice Guidelines that apply to procedures routinely performed by paramedics (including dealing with respiratory emergencies, medical emergencies, foreign body airway obstructions and cardiac arrest). The witness outlined the relevant steps to be taken in the case of each procedure and said that, in his opinion, each of them required the use of both hands and particularly in the case of an adult patient. He said that a paramedic who had the use of one good hand would be ‘challenged’ to complete these and many other tasks that are integral to the role. The witness was also asked about the driving aspect of the paramedic’s role. He told the Court that the NAS applies the Roadcraft standards of driving as developed for the police forces in the United Kingdom which emphasise,inter alia, the need to retain both hands on the steering wheel as much as possible even though most ambulances in the NAS fleet have manual transmission. The witness gave a detailed account of the numbers of student paramedics in training at any one time and the system of bloc release to the 140 ambulance stations around the country. He said it would be impossible to assign a student to a particular practicing paramedic, having regard to the total number of students available, the duration of the bloc release periods and the policy of assigning students to the stations nearest their homes and of rotating them across different stations (rural, urban etc). Next the witness was asked about the return-to-work protocols operated by NAS. He said the focus of the protocols was on the person’s level of clinical competency. He emphasised that the return-to-work programme involved a sequence of meetings to assess each individual’s need for retraining, re-certification, familiarisation with new equipment and new guidelines followed by the delivery of the necessary training and upskilling to ensure they have the necessary competency in relation to all aspects of the role before they resume normal duty as part of a two-person crew. The Law Section 16(3) of the Act provides:
Section 16 of the Act was the subject of far-reaching judicial analysis by the Supreme Court inNano Nagle v Marie Daly[2019] 30 ELR 221. It appears to the Court that there are two parts to the case being advanced on behalf of the Complainant. Firstly, she submits that the Respondent was in breach of the Act by reason of its failure to provide her with an alternative role as soon as she was deemed fit by Occupational Health to undertake light or modified duties. In advancing this element of her case, she named a number of paramedic colleagues – who like her were recovering from an injury or recuperating from an illness -she says had been ‘accommodated’ in this way. Charleton J unequivocally pointed out at paragraph 10 of his judgment inNano Naglethat section 16 of the Act places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired:
It follows that this aspect of the complaint before the Court cannot be construed as one of failure on the Respondent’s part to make reasonable accommodation for the Complainant. Rather, at its height it can only be understood as a complaint that the Complainant was treated less favourably than other employees with a different disability. It is well-understood that a complainant under the Act must first establish facts from which an inference of discrimination can be inferred before the burden of proof shifts to the Respondent. The Complainant was in fact offered and accepted a temporary alternative role with the Respondent commencing 16 March 2020. While she did name in her oral evidence some four colleagues who had – like her – been placed on temporary alternative duties, she did not submit that their redeployment had occurred immediately after they had been certified unfit to perform the duties of their substantive post or within a shorter timeframe than that that applied in her case. It follows that the Complainant has not made out aprima faciecase that operates to shift the burden of proof with regard this first leg of her claim. Had she done so, the Court would have had to determine whether the sworn evidence of Mr Mooney in relation to why Mr West’s proposal of May 2029 was deemed to be an inappropriate means of redeploying the Complainant and in relation to the reasons why he himself, based on a contemporary medical report, ultimately decided in August 2019 against assigning her to the filing and archiving project provided an adequate defence and demonstrated a non-discriminatory explanation for the matters complained of. The second part of the Complainant’s case relates to the Respondent’s decision not to return her to her substantive position until Occupational Health certified her fully fit to perform the full range of duties associated with that position. Needless to say, the Court accepts that the Complainant has established a prima faciecase with regard to this element of her complaint: during the period following her accident in July 2018 up until May 2020 the Respondent did not countenance her return to her substantive position as a paramedic because she was certified by Occupational Health at all times as “unfit for [normal] duty” as a consequence of her wrist injury and the complex pain syndrome associated with the injury. The Complainant has articulated this aspect of her claim as an alleged failure on the respondent part to provide her with reasonable accommodation or to engage in a proper assessment of what appropriate measures could be taken to facilitate her return to her substantive job. The Respondent’s defence to the complaint is premised on both the medical reports submitted to it by Occupational Health following its regular and ongoing assessments of the Complainant and its innate understanding of the nature of the job, core to which is the imperative that a paramedic must be able to perform each and every task associated with the role. Anything less than that, according to the Respondent, would present an unacceptable risk to the paramedic himself or herself and to the public. The reports submitted by Occupational Health, up until May 2020, declared the Complainant “unfit for normal duty” As stated above, as late as 18 February 2020 the Complainant was so certified albeit by that stage she was deemed fit to drive and “fit for duty that is both clinical and administrative that does not involve the following: - heavy lifting (specifically lifting patients down a set of stairs in a home setting) - high risk manual handling as identified by a manual handling risk assessment”. At no stage did the Complainant object to, or seek to challenge, the assessment of her medical condition and fitness to work as determined by Occupational Health. Furthermore, the Respondent – relying on section 16(3)(b) of the Act – submits that it did take relevant appropriate measures to ensure that the Complainant, notwithstanding her disability, had continued access to employment. It cites the following as examples of the appropriate measures that were applied in this case: (a) The Complainant was paid sick pay at full rate, half pay and TRR in the aggregate sum of €29,180.13 while was unfit to work; (b) The Complainant’s fitness to return to work was regularly assessed; (c) The Respondent considered whether alternative duties could be given to her during the period when the Complainant was unable to complete the essential duties of her role; (d) The Respondent assigned the Complainant to different duties than the duties of her grade when such duties became available. When it did so, the Complainant was paid her full paramedic salary, plus premium payments and allowances, during a period when she was carrying out the duties of a telephone operator; (e) When the Complainant became fit enough to carry out the duties of a paramedic, the Respondent engaged in a graduated return to work process that facilitated her return to full duties as a paramedic. The Court found the evidence of Mr Macartan Hughes in relation to the nature of the duties of a paramedic in general, and his evidence in relation to the level of dexterity and strength required in both of a paramedic’s hands if he or she is to perform various medical interventions in accordance with PHECC Guidelines, in particular, very convincing and persuasive. His evidence was not seriously traduced in any respect. Specifically, his evidence in relation to the level of risk that would arise both for the paramedic and the public in circumstances where a paramedic could not, due to a lack of dexterity or injury, perform the full range of duties was not seriously disputed. DETERMINATION:
The Respondent was entirely justified, in the Court’s judgment, in relying on the Occupational Health reports it received on a regular basis in relation to the Complainant and her level of ability to perform, or not, a range of essential duties inherent to her role. As soon, as the reports indicated a sufficiently positive improvement in her condition, the Respondent engaged in a comprehensive and graduated programme that facilitated the Complainant’s return to service as a paramedic. On the basis of the foregoing, the Court finds that the Respondent has rebutted any inference of discrimination that arose in relation to the second element of the Complainant’s case. It follows, therefore, that the Court finds that neither element of the Complainant’s case succeeds and the decision of the Adjudication Officer, in all respects, is set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Nuria de Cos Lara, Court Secretary. |
