Complainant

Respondent

Parties

Bernadette  Kavanagh

St. James’s Hospital

Representatives

Chris Harrison, Fórsa Trade Union

Niamh Daly, Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056989-001

02/06/2023

In May 2000, the Complainant commenced working for the Respondent in an administration/clerical role. The Complainant’s most recent role was that of a Grade IV Clerical Officer. She worked approximately 36 hours per week, earning approximately €47,000 per annum. In October 2021, the Complainant suffered a workplace injury to her head, shoulder and wrist after she tripped in the office. She went on certified sick leave and has remained on sick leave to date. On 2 June 2023, the Complainant submitted her Complaint Form to the WRC in which she alleged that she was discriminated against by reason of her disability and that the Respondent has failed to provide her with reasonable accommodations, in breach of the Employment Equality Acts 1998-2015, as amended (the “EEA”). The Respondent denies the complaint in its entirety.

The Complainant provided detailed written and oral submissions.

The Complainant submitted that she has worked for the Respondent since May 2000. The Complainant outlined that after her workplace injury in October 2021, she went on certified sick leave and never returned to work. On 10 November 2021, the Complainant exchanged emails with HR in which she requested to go back to work. HR replied, stating that she could not return to work as she was certified as medically unfit for work. HR further stated that medical clearance from Occupational Health (“OH”) would be required. The Complainant submitted that she did not hear anything further from HR regarding her requests. The Complainant submitted that she remained on sick leave and continued to submit medial certificates.

The Complainant submitted that on 3 April 2023, the Complainant attended an OH appointment. Separately, she received notice that her Temporary Rehabilitation Remuneration (“TRR”) payments would cease.

The Complainant submitted that on 3 May 2023, she received a letter from HR outlining that the Respondent’s OH Doctor had deemed her permanently unfit for work, listing her medical issues as: “osteoarthritis in her hands, hips, knees and neck with associated fibromyalgia, persistent MRSA infection in her left ear, depression, intermittent neck and back pain and flares of diverticulitis….”

The Complainant submitted that on 6 June 2023, her union representative notified the Respondent that she was referring this matter to the WRC as there had been “no discussions [with the Complainant] around reasonable accommodations”. The Complainant submitted that HR replied on 8 June 2023, indicating that it had requested further information from the Respondent’s OH Doctor regarding reasonable accommodations. The Complainant submitted that later that day, HR emailed her, requesting her suggestions of roles for consideration.

The Complainant outlined that on 13 July 2023, HR provided a response from the Respondent’s OH Doctor with details as to why the Complainant cannot undertake other roles. The Complainant takes issue with there being no information or assessment regarding the tasks and duties that she can do. The Complainant also submits that there is no consideration of assistive technology options or aids. Finally, in her letter to the Respondent dated 28 July 2023, the Complainant also queried whether prior to June 2023, there were assessments or costings regarding previously proposed accommodations.

The Complainant submits that she has met the burden of proof pursuant to the EEA. The Complainant submits that she was subject to direct and indirect discrimination insofar as the Respondent failed to engage with her on any reasonable accommodations. The Complainant submits a more thorough assessment process was needed with her input, to explore all possibilities.

Oral Evidence:

The Complainant:

The Complainant stated that after her email correspondence with HR in November 2021, she received no communication from HR at all.

The Complainant outlined that in April 2023, she waited for an hour to see Dr. Noonan, the Respondent’s OH Doctor, and was then only attended to for eight minutes. The Complainant outlined that Dr. Noonan told her that she was permanently unfit for work and that she would be retired on ill-health grounds. The Complainant submitted that there was no discussion. She stated that she was shocked by Dr. Noonan’s assessment and that she did not understand the conversation. She submitted that she emailed Dr. Noonan afterwards, to seek clarification. The Complainant submitted that no consideration whatsoever was given to any reasonable accommodations.  

Under cross-examination, the Complainant confirmed that she was not fit to return to her current role. She also accepted that she had a number of long-standing conditions, which prevented her from returning to work. The Complainant refused to accept that she did not engage with HR or that she refused to attend meetings. When the Complainant was referred to a letter dated 10 May 2023, which sought a response from her, the Complainant stated that she referred all such correspondence to her union representative to deal with.

The Complainant also confirmed that the Respondent had corresponded with her between November 2021 and April 2023 and that she had attended “at least” three OH appointments. However, the Complainant submitted that this was the standard procedure during the Covid-19 Pandemic and that during these appointments, she had just been asked about how she was getting on etc..

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant commenced work in May 2000. The Respondent submitted that the Complainant has been on sick leave since October 2021. The Respondent further submitted that since October 2021, the Complainant has been assessed 14 times by Dr. Noonan, the Respondent’s OH Doctor.

The Respondent referred to the OH Report dated 3 April 2023, in which the OH Doctor noted:

“When I finally concluded that she was permanently unfit to perform her work tasks, I had considered what types of work would she be able to manage. As clerical duties are the least physically demanding but require good hand, wrist, shoulder functioning, she described continuous pain and difficulties in her joints, as she did several years ago so these are likely to progress and they did.

The only lighter duties might be if she was a telephonist but then that would require a lot of PC work also. It is a very sedentary job and someone with Bernadette’s diagnosis should be as physically active as possible rather than be sedentary so this would also not be suitable and she has confirmed on numerous occasions that she is not fit to work”.

The Respondent submitted that on 10 May 2023, HR wrote to the Complainant and asked her if she accepted the ill-health retirement recommendation or if she wished to appeal the decision that she was permanently unfit for work. On 6 June 2023, when the Complainant had not engaged, HR invited her to a disciplinary meeting to formally discuss her continued employment.

The Respondent submitted that on 9 June 2023, the Complainant was invited to suggest any roles that she believed that she could carry out, but she did not do so. The Respondent submitted that on 13 June 2023, HR sought clarifications from the Respondent’s OH Doctor about suitable alternative roles, however, HR was informed that none of the suggested roles were suitable, for a variety of reasons.

The Respondent submitted that the Complainant has failed to produce any evidence that any discrimination occurred and so has failed to discharge the burden of proof under the EEA.

The Respondent sought to rely on Nano Nagle School v. Marie Daly, [2019] IESC 63 and Health Services Executive v. O’Shea, EDA 2227.  The Respondent submitted that the OH Doctor noted that the Complainant had confirmed on numerous occasions that she was not fit to work. The Respondent submitted that the Complainant continues to submit medical certificates outlining that she is not fit for work. The Respondent submitted that the OH Doctor concluded “after several assessments” that the Complainant was permanently unfit for the post of clerical officer. The Respondent submitted that HR challenged this conclusion in June 2023 to ensure that every option was considered, however the Respondent’s OH Doctor concluded that none of the suggested roles would be suitable for the Complainant.

The Respondent submitted that this matter can be distinguished from Cunningham v. Irish Prison Service [2020] IEHC 282, as the Complainant is not fit to carry out her contracted role. The Respondent further submitted that this matter can be distinguished from HR Rail C-485/20, CJEU (Third Chamber), 10 February 2022, as the Complainant was deemed medically unfit to perform the alternative roles suggested.

Oral Evidence:

Dr. Noirin Noonan, the Respondent’s OH Doctor:

Dr. Noonan outlined that she has worked for the Respondent since 1992. Dr. Noonan outlined that the Complainant was first referred to the OH Team in 2003 and that they have assessed the Complainant 37 times. She noted that the nurses have also seen her 13 times. Dr. Noonan said that it is highly unusual to examine a person this often. She outlined that the Complainant has a “constellation of symptoms and disabilities”. She further outlined that the Complainant’s conditions are worsening.

Dr. Noonan stated that the OH Team provided detailed assessments of the Complainant and that she consulted with her colleagues for updates. She noted that the Complainant herself said that she is unfit for work. During one assessment the Complainant told Dr. Noonan that she had headache, back and shoulder pain and that she had to lie in a dark room. In October 2022, the Complainant told Dr. Noonan that she did not have bodily functions. In January 2023, the Complainant told Dr. Noonan that she “couldn’t even lift a pot”. Dr. Noonan outlined that ill-health retirement was discussed with the Complainant at that stage. Dr. Noonan stated that she had to take everything into account in her assessments. Dr. Noonan further outlined that it was unusual that the Complainant never suggested any type of work for which she was suitable.

Dr. Noonan outlined that she referred the Complainant to various specialists, including: an Occupational Therapist; a Physiotherapist; a Psychiatrist; a Rheumatologist; and a Pain Specialist. She further outlined that they all report back to her and would have let her know of any reasonable accommodations which would be of benefit to the Complainant. Dr. Noonan stressed that the Complainant was never in a suitable condition to return to work.

Dr. Noonan outlined that the Complainant could not undertake clerical roles due to her posture, tennis elbow and wrist issues. She could not remain seated for long. She could not wear a headset due to the MRSA infection in her ear. Dr. Noonan was certain that assistive technology measures would not be of sufficient benefit.

Dr. Noonan outlined that when she documents a disability, she firstly looks at suitable rehabilitation. If that does not work, she considers ill-health retirement. Dr. Noonan stated that the Complainant specifically told another doctor in November 2022 that she was waiting to hear her about ill-health retirement. Dr. Noonan also stated that before she, reluctantly, signed the Complainant off on ill-health retirement, she had read up on all of her notes and contacted the specialists. She outlined her belief that the Complainant was expecting to be signed off on ill-health retirement.

Dr. Noonan outlined that three other different professionals also found the Complainant to be unfit for work – Dr. Noonan’s co-worker who is a doctor; the social welfare assessor; and the income protection assessor.

Cross-Examination:

Under cross-examination, Dr. Noonan outlined that every time there was a follow up meeting with the Complainant, there was an assessment of her. Dr. Noonan outlined that the OH Team considered whether there had been any progress and that all findings were documented and reported to the Complainant. She outlined that if they felt that reasonable accommodations could have been made for the Complainant, they would have indicated accordingly.

Dr. Noonan also outlined that she considered other roles for the Complainant but could not think of anything suitable. Dr. Noonan outlined that the Complainant is not fit for any role with even the lightest duties. Dr. Noonan again stated that assistive technology would not be of sufficient benefit as the Complainant would still be required to do a lot of PC work and use both of her hands.

Dr. Noonan outlined that the Complainant herself told her that she could not do anything and that she was not improving, despite pain medication and her treatments.

Dr. Noonan outlined that the Complainant was discharged from the OH Team’s care, as they felt that was nothing else that could be done.

Mr. O’Sullivan, the Respondent’s Employee Relations Manager:

Mr. O’Sullivan outlined that the Complainant’s medical certificates have all indicated that she was not fit to attend work due to “head, neck and shoulder pain”. He outlined that he was informed of the ill-health retirement recommendation concerning the Complainant around April 2023. He stated that if the OH Report had identified reasonable accommodations, he would look into how to provide for them or he would look into finding a suitable role, where appropriate. He outlined that he would talk to the person’s manager. He outlined that he would also talk to his colleagues to see what roles were available. He outlined that it depends on each case and that he considers the totality of the situation.

Mr. O’Sullivan outlined that he wrote to the Complainant in May 2023 to see if she was accepting the ill-health retirement recommendation. He outlined that when he did not receive a response from her, he arranged a disciplinary meeting to discuss the recommendation and to hear any contradictory medical evidence that she had, if she wished to oppose the recommendation.

Cross-Examination:

Under cross-examination, Mr. O’Sullivan stated that the decision regarding reasonable accommodations is made by a number of people. He stated that it is a collegiate approach and everyone that he needs to talk to regarding a solution, is involved. He stated that he does not make the decision on his own, as all contributions are taken into account.

Mr. O’Sullivan explained that the disciplinary process was invoked as the Complainant was essentially challenging the ill-health retirement recommendation by not responding. He outlined that, in line with procedure, the matter is deemed a stage IV disciplinary matter as the Complainant’s employment is in jeopardy. He stated that no meeting took place as the procedure was paused when the Complainant submitted this complaint to the WRC.

Mr. O’ Sullivan stated that the Respondent’s position is informed by the OH Doctor’s recommendation. He further stated that 99% of the time, an ill-health retirement recommendation is accepted. If it is challenged, then it has to be explored.

The Law:

Legislation: Employment Equality Act 1998-2015, as amended (the “EEA”):

Discrimination:

Sections 6 and 8 prohibit employers from discriminating against employees on the basis of disability.

The most relevant parts are:

“6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,

[…]

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

[…]

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

[…]

8. (1) In relation to—(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee […].”

Reasonable Accommodation:

Section 16 of the EEA addresses the extent of the obligation of an employer to provide reasonable accommodation to an employee. The most relevant parts of section 16 are:

“16(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.”

Section 16(3) outlines the obligation to provide appropriate measures for an employee:

“(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.”

Section 16(4) addresses what are appropriate measures:

“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.”

Burden of Proof:

Under section 85A of the EEA, the burden of proof is on the Complainant. If the Complainant meets the threshold, it is then for the Respondent to rebut the presumption of discrimination.

In Melbury Developments Ltd. v. Valpeters [2010] E.L.R. 64 (the “Melbury Developments Case”), at page 68, the Labour Court addressed the burden of proof, finding:

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

Caselaw:

In Nano Nagle School v. Daly [2019] IESC 63 (the “Nano Nagle Case”), the Supreme Court addressed the obligation to provide reasonable accommodation to an employee in the following terms:

“89. This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a "disproportionate burden". If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or "stripped out ". But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, "fully capable of undertaking the duties" attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to "the position", not to an alternative and quite different position.

[…]

106. 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.”

In Cunningham v. Irish Prison Service [2020] IEHC 282 (the “Cunningham Case”), Barr J. noted at paragraph 72:

“In addition, the case law makes it clear that the employer does not have to create a job for the person with the disability nor do they have to provide measures that are unduly burdensome. This is the test of proportionality or reasonableness: see Nano Nagle judgment at paras.89 and 106.”

Barr J. concluded that there was no one-size-fits-all approach and the nature of the obligation to provide reasonable accommodation depended on the circumstances.

In HR Rail C-485/20, CJEU (Third Chamber), 10 February 2022 (the “HR Rail Case”), the Court of Justice of the European Union determined that “reassignment to another job may constitute an appropriate measure”, albeit not to such an extent that it poses a “disproportionate burden” on the employer. The employee must also have the necessary competence, capability and availability for the new role. There must also be a vacancy available for the employee to fill.

Findings and Conclusions:

It was common case that the Complainant has a disability within the meaning of the EEA and therefore enjoys the protections of the EEA. In the Respondent’s letter dated 10 May 2023, her disability was outlined as: “osteoarthritis in [the Complainant’s] hands, hips, knees and neck with associated fibromyalgia, persistent MRSA infection in her left ear, depression, intermittent neck and back pain and flares of diverticulitis….” It was also common case that despite her treatments, her condition is worsening.

On the basis of the evidence before me I am satisfied that the Respondent fulfilled its duty under section 16 of the EEA and the abovementioned caselaw. The Respondent’s OH Team thoroughly assessed the Complainant. Since 2012, the OH Team gathered a considerable amount of information concerning the Complainant, encompassing over 170 emails, reports and assessments - including 37 assessments by the OH Team. The nurses have also seen the Complainant 13 times. Since October 2021 alone, the Respondent’s OH Doctor, has assessed the Complainant 14 times. The Complainant was referred to various specialists for rehabilitation, including: an Occupational Therapist; a Physiotherapist; a Psychiatrist; a Rheumatologist; and a Pain Specialist. However, by her own admission, the Complainant did not improve. In fact, her condition worsened. The OH Doctor outlined some of the Complainant’s input: in October 2022, the Complainant told her that she did not have bodily functions; and in January 2023, the Complainant stated that she “couldn’t even lift a pot”.  In her evidence, the OH Doctor stressed that the Complainant was never in a suitable condition to return to work. She also outlined that neither the OH Team nor the specialists could suggest any reasonable accommodations which would be of benefit to the Complainant.  Finally, the OH Doctor clearly outlined the various reasons why the Complainant is not fit for any role with even the lightest duties.

The Complainant’s disability rendered her totally incapable of performing her contractual duties and no reasonable accommodations could have been put in place for her to return to her role. Moreover, she was not capable of any role with even the lightest duties. In the circumstances, I decide that the Complainant has not established a prima facie case of discrimination on the ground of disability or that there was a failure to provide reasonable accommodation. Therefore, I find that she was not discriminated against. This complaint is not well founded.

The Complainant has not established a prima facie case of discrimination on the ground of disability or that there was a failure to provide reasonable accommodation. Therefore, I find that she was not discriminated against. This complaint is not well founded.

Employment Equality Act 1998-2015, Discrimination, Reasonable accommodation.