Complainant

Respondent

Parties

Marie Kinsella

Health Service Executive

Representatives

Seamus Collins BL instructed by Sean Ormonde & Co., Solicitors

Loughlin Deegan, Byrne Wallace Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00050572-001

11/05/2022

The complainant asserts that she was discriminated against on grounds of disability because of a failure to assess her suitability for alternative roles. The respondent denied the claim.

The complainant was employed by the Health Service Executive as an Intermediate Care Operative and her employment commenced on the 29th October 2013. She resigned on the 28th November 2021. While the complaint form referred to discriminatory dismissal, the complainant outlined that she was withdrawing the complaint of discriminatory dismissal and dismissal for opposing discrimination.

The complainant gave an outline of the medical issues including back pain she experienced since 2017. During the pandemic, the complainant was assigned to the Covid car, which was a service provided by the respondent to test members of the public for Covid-19 in their homes. She was redeployed to this role and then returned as an Intermediate Care Operative. She was attending a manual handling course in April 2021, which she was unable to complete because of ongoing pain. She was certified as unfit to work on the 29th April 2021 and these certificates continued until the 2nd November 2021.

The occupational health assessment provided that she was unfit for her usual job but that she could do modified work, avoiding heavy manual lifting or managing aggressive patients. While the assessment referred to there being a follow-up, the complainant outlined that there was no follow-up. The complainant said that she had completed aggression management training and had always been able to complete this training.

The complainant outlined that she sought an alternative role with the respondent. She sought to return to the Covid car, a service which was ongoing and continued throughout 2021. She sought an office role in Wexford and Mr Groves made enquiries on her behalf. She said that Mr Groves was told by his superiors that she could not have the role. She sought a named National Ambulance Service logistics role in Kilkenny, but the respondent did not respond to her about the vacancy. The complainant describing hitting ‘brick walls’ as she was prevented from taking up Covid car and other roles. The complainant incurred financial loss as her sick pay entitlements exhausted. The respondent did not approve her application for Critical Illness Protocol. The complainant had sought alternative roles with the Health Service Executive but referred back to the National Ambulance Service as she was not a direct employee of the HSE or the hospital.

In cross-examination, the complainant accepted that manual handling was a core part of the Intermediate Care Operative role and had never encountered an aggressive patient in the course of her work. She said that the Covid car role was different to the Intermediate Care Operative role. While the particular Covid car team disbanded, the respondent continued to provide the home testing service by colleagues from elsewhere. It was put to the complainant that there was no vacancy in Wexford; the complainant said that she was informed that Wexford was not a possibility and raised the Kilkenny role with Mr Groves.

In closing, the complainant outlined that the respondent had failed to adequately assess the complainant’s disability and did not assess what it could do and could not do. The respondent did not have the basis to make the assessment it did of there being no role for the complainant. In Nano Nagle v Daly [2019] ELR 221, MacMenanim J had emphasised the importance of the employer conducting an assessment. The respondent was not in a position to decide what extent of accommodation could be offered because of the lack of assessment. The complainant distinguished Marie O’Shea v HSE EDA2227 as there were 13 occupational health assessments over 17 months in that case but only one assessment in the instant case.

Evidence of Brendan Groves

Mr Groves outlined that he became the complainant’s manager in 2018. The complainant was an excellent employee and wanted to go back to work. He was aware of the complainant’s ongoing medical issue, and she was referred to occupational health when she was unable to complete manual handling. He said that all roles were patient facing and there was a risk of aggression, and he had experienced this, for example, with patients with dementia. He had explored the Wexford role but there was no vacancy. They discontinued the Covid car service. He could not recall the conversation about Kilkenny. He said that he needed a letter from the complainant and a medical certificate to look for wider roles.

In cross-examination, it was put to Mr Groves that he did not have a full picture to decide accommodation. He replied that he had the occupational health report and there is no definition of light duties. He only became aware of the cancellation of the follow-up assessment on the complainant’s resignation.

In closing, the respondent outlined that the complainant’s case hinged on the failure to follow-up the September 2021 assessment. The complainant accepted that she could not do the Intermediate Care Operative role. Mr A v Government Department EDA061 was authority that the scope of the duty to provide reasonable accommodation was what was necessary and reasonable in the circumstances. It was not necessary in this case for a further assessment to confirm the existing position. The complainant ought to have written to apply for redeployment. Redeployment outside of the Intermediate Care Operative role was beyond the duty of reasonable accommodation.

The complainant could not do the Covid car role because the risk of encountering aggressive patients and this service was phased out. The cancellation of the September appointment was immaterial and there was no obligation on the respondent to create a new job for the complainant. The respondent emphasised Marie O’Shea v HSE which also dealt with reasonable accommodation of a paramedic.

The complainant started as an Intermediate Care Operative in 2013 and clearly enjoyed the role and was well-regarded by her colleagues. It was clear from the hearing Ms Kinsella and Mr Groves had a very good, longstanding working relationship. This complaint and this adjudication arose because of what the complainant aptly described as her hitting a brick wall.

The complainant could not complete the April 2021 manual handling role because of an ongoing health issue. As noted, she was certified as unfit to do her ‘usual job’. She was permitted to do a modified role, with the caveats of avoiding heavy manual lifting or managing aggressive patients. It is significant that as part of her duties as an Intermediate Care Operative, the complainant was deployed to the Covid car service, to test members of the public in their home for Covid-19. Paramedics operated in pairs to call to people’s homes. This redeployment was in line with clauses 4 and 6 of the complainant’s contract of employment. Such flexibility clauses are, however, a two-way street and both sides of the contract are entitled to rely on the clause of reasonable flexibility.

Substantive finding

I decide that there was discrimination on grounds of disability and the respondent did not adequately provide reasonable accommodation. I make this decision for the following reasons. First, there was no dispute that the complainant had a disability within the ambit of the Employment Equality Act. Second, the occupational health assessment of the 28th June 2021 assessed the complainant’s suitability for the complainant’s ‘usual job’ and not the Covid car role or any other role. Third, the assessment was predicated on there being a follow-up and there was no follow-up. Fourth, the Covid car role was within scope of the complainant’s existing role as she had been deployed there before. No assessment was done of her suitability to now do the role. The respondent made an assumption without any basis for it. Fifth, the Covid car continued through 2021. While staff from Mr Groves’ team were no longer doing this role, staff from another NAS office were doing the role. The complainant could have done this role. Sixth, the Kilkenny role was within scope of the complainant’s existing role, but she was not considered for it.

Redress

For these reasons, I find that there was a breach of the duty to provide reasonable accommodation as the law is set out by the Supreme Court in Nano Nagle v Daly. The complaints of discriminatory dismissal were withdrawn. In respect of the discrimination claim, I assess the effects of discrimination as meriting an award of €8,000. The complainant was a loyal and effective employee of the respondent. She could not do her usual role and actively sought to find alternatives. There were alternatives available, and she was not considered for them.

Paradigm shifts

I am clear that the complainant succeeds on the application of Nano Nagle v Daly. The Supreme Court judgments in Nano Nagle v Daly form part of the evolving assessment of concepts such as ‘reasonable accommodation’ and ‘appropriate measures’ which stem from the Framework Equality Directive (2000/78/EC). Paradigm shifts have occurred in this evolving jurisprudence, in particular arising from consideration of the Convention on the Rights of Persons with Disabilities. At paragraph 63 of Irish Prison Service v Cunningham [2020] IEHC 282, Mr Justice Barr held: ‘It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law. This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act. The judgements of the CJEU referred to earlier and the judgement of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work. In addition, the Nano Nagle case makes it clear that the provisions of the CRPD are also relevant to the question of the correct interpretation of the Act.’ 

HR Rail

On the 10th February 2022, the Court of Justice of the European Union handed down its judgment in the HR Rail case (C-485/20). The Court determined that, as a matter of EU law, reasonable accommodation required an employer to consider other roles than the role heretofore carried out by the employee.

HR Rail related to a railway worker who could no longer work on the railways as a heart condition led him to being fitted with a pacemaker, which was incompatible with the electromagnetic fields on the railways. While he was temporarily assigned a position in a warehouse, he was later dismissed on grounds of incapacity. The CJEU held 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. As noted by the Advocate General in HR Rail, reasonable accommodation involves a fair balance between the needs of the person with a disability and those of the employer. The Advocate General emphasised that an accommodation requires practical measures to ensure that the employee remains in employment. What is striking in HR Rail is that the employee was already assigned to an alternative role that he could perform at the time he was dismissed.

Each case is determined according to its circumstances. HR Rail related to a large employer with a multiplicity of roles and vacancies available to it. The employee in HR Rail was already accommodated in an alternative position pending the completion of the capability process. It is undoubtedly the case that the CJEU in HR Rail placed a much greater emphasis on keeping the employee in employment as opposed to an individual role. Reasonable accommodation specifically requires the employer to consider other positions than the employee’s current position, albeit one the employee is capable of and in which there is a vacancy.

Impact of HR Rail

HR Rail means that there is an obligation on the employer to consider reassignment of an employee to a new role as part of reasonable accommodation. This is probably broader than many interpretations of Nano Nagle v Daly. HR Rail is, of course, binding on WRC adjudication officers, as it represents the current interpretation of a key concept of EU disability anti-discrimination law. Given the number of employees in the HSE and the range of its functions, HR Rail imposes a broad obligation on it to consider reassignment and redeployment of disabled employees. The respondent fairly acknowledged that the complainant was an ‘excellent employee’ and she had pointed to alternative roles. HR Rail has greatly improved the position of ‘excellent employees’ such as the complainant who can be accommodated by their large employers. Of course, the complainant would succeed in this claim on HR Rail grounds in addition to having succeeded on the application of Nano Nagle v Daly (for clarity, there is one contravention and one award, but the complainant can rely on both Irish and EU case law to do so).

CA-00050572-001

I decide that there was a contravention of the Employment Equality Act in respect of reasonable accommodation and disability and that the respondent shall pay to the complainant redress of €8,000.

Employment Equality Act / reasonable accommodation / Nano Nagle v Daly [2019] ELR 221 / HR Rail (C-485/20)