ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035071
Parties:
Anonymised Parties | Enhanced Senior Staff Nurse Worker | Residential Care Service |
Representatives | Self-Represented | Roy Horan, IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 79 of the Employment Equality Act, 1998 (amended in decision) | CA-00045277-001 | 19/07/2021 |
Date of Adjudication Hearing: 01/12/2022
Workplace Relations Commission Adjudication Officer: Paul McKeon
Procedure:
Preliminary Matter
On 19 07 2021, the Complainant a lay litigant lodged a complaint in accordance with Section 86 of the Employment Equality Act, 1998. The Complainant form in the narrative set out that the complaint was a claim of discrimination on grounds of disability.
The Complainant at the hearing clarified that she wished to advance her case from the narrative of the complaint form as a claim for discrimination on grounds of disability.
The Respondent’s representative in response to this noted that the Complainant had taken the claim under Section 86 of the Employment Equality Acts 1998 to 2015, which pertains to collective agreements. The Respondent noted that the Complainant has not cited any collective agreement or a provision of such which is alleged to be discriminatory. It is in this context the Respondent submitted that the complaint in this case is manifestly frivolous or misconceived within the meaning of the Employment Equality Acts 1998 to 2015 and accordingly, the Respondent respectfully requested at the hearing that the claim be dismissed.
I explained to the parties following hearing both of their positions that as both parties were at a crossroad on this issue I would with their agreement which both parties were in agreement with press on and proceed with the rest of the hearing and I would reflect my position on the above matter in my substantive decision which both parties were also in agreement with.
In this regard, in making my decision on this matter I am conscious that the Complainant clarified at the hearing that she wished to advance her case from the narrative of the complaint form as a claim for discrimination on grounds of disability.
While I did consider the points the Respondent made that the claim was made under Section 86 of the Employment Equality Act, I am conscious that as the Complainant is a lay litigant, the Complainant had the right to be heard in terms of fair procedures and it is in this context I needed to adopt some flexibility with the Complainant in clarifying her claim.
In coming to my decision on this point I also note that the Respondent was not prejudiced as they had already submitted an on-point submission on the topic of alleged discrimination and also were prepared to do so which they did on the date of the hearing. I also note that the narrative of the Complainants complaint relates to discrimination in relation to disability relating to the individual which I am satisfied the Respondent was on also on notice of.
Therefore, It is in this context I will assess and make my decision in relation to this claim in accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, (amended in my decision) following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Time Limits
The Respondent also raised a preliminary issue in relation to the jurisdiction of the Adjudication Officer to hear the complaint on the basis of time limits. The Respondent notes that the complaint form was received by the Workplace Relations Commission on 19 July 2021, yet the Complainant cites the most recent date of discrimination as 03 September 2021. The time period in question is the period six months prior to 19 July 2021 – not after.
The Complainant submitted at the hearing that the reason she put this date was in error due to follow up correspondence they had with the Workplace Relations Commission on the 07 September 2021 in relation to the complaint form they originally sent on 19 July 2021. The Complainant submitted at the hearing that in the follow up correspondence they added this date but that the complaint she lodged with the WRC refers to the period of six months prior to 19 July 2021 – not after.
In this regard, the alleged acts of discrimination as set out in the Complainants narrative refer to an ongoing dispute relating to her disability and the time period set out in the Complainants narrative refers to the period of six months prior to 19 July 2021 – not after.
On this point, I note the complaint was submitted on 19 July 2021 and the narrative is referring to incidents of alleged discrimination that are within the timeframe therefore I accept the Complainants argument that the date of 03 September 2021 was an error.
Therefore, I determine that the matter is properly before me and I have jurisdiction to hear the complaint.
At the adjudication hearing on the 01 December 2022, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. In this case I have exercised my discretion to anonymise the parties on the facts that the Complainant and Respondent presented evidence of a very sensitive nature based on the Complainant’s medical condition and disability. I was also conscious that the service the Respondent provides relates to vulnerable adults and it is in these circumstances that also justifies anonymisation of the parties in this decision.
All participants who gave evidence were sworn in. The parties were given an opportunity to cross examine the evidence. Following the hearing the Respondent submitted further documentation clarifying dates the commencement of the Complainants employment along with dates of her subsequent promotions. I afforded the Complainant a period of 10 working days to respond on the Respondents follow up documentation. The Complainant did not submit any comments and I was satisfied that the Complainant was notified of the follow up documentation the Respondent had submitted.
All of the evidence, submissions submitted have been considered herein.
The Complainant was self-represented.
The Respondent was represented by Rob Horan of IBEC.
The witnesses were: For the Respondent:
Manager of the Service Centres (Centre Manager)
Former HR Manager of the Service (Former HR Manager)
Background:
On 19 July 2021, the Complainant, a senior staff nurse, and lay litigant submitted a claim of discrimination before the WRC. This complaint involves a claim by the Complainant that she was discriminated against in that the Respondent failed to provide her with reasonable accommodation to take account of her disability in accordance with Section 16(3) of the Employment Equality Acts 1998 – 2008. The Respondent, represented by IBEC rejected this contention and furnished a comprehensive written submission in support of that position.
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Summary of Complainant’s Case:
The Complainant submits as follows:
The Complainant submits that she was subjected to discriminatory treatment as a result of the Respondent failing to provide her with reasonable accommodation to take account of her disability in accordance with Section 16(3) of the Employment Equality Acts 1998 – 2008.
The Complainant further submits she was discriminated on the grounds of disability due to the Respondent’s failure to allow the Complainant to work in a location suitable for her needs in relation to her disability.
The Complainant also submits that the Respondent failed to allow the Complainant to work in a location which excluded night work. She submits that she was unable to work nights due to her disability and also due to her child’s medical condition.
The Complainant advised the hearing that she suffers from a number of medical issues over the years which she has tried to manage to the best of her ability.
The Complainant further advised the hearing that her medical condition causes her to have a tingling sensation in her hands along with weakness at times which is known as ‘Trigger Finger’ and Carpel Tunnel Syndrome.
The Complainant also added that she also suffers from back pain which prevents her sometimes from standing or staying in the same position for long periods of time.
In addition, the Complainant also advised the hearing that her teenage son has a medical condition known as sleep apnoea and due to this she couldn’t work nights as she needed to be home, with him therefore this was another reason why she felt her employer should not have reassigned her to what we will refer to for the purpose of this hearing as Centre B.
The Complainant gave evidence at the hearing that she had worked in Centre A over a number of years.
The Complainant submitted that her issue with the Respondent started in and around June/July of 2020 after the Respondent had written to all staff including the Complainant informing them of a new ‘Strategic Plan’, which would require some staff to move location in order to ensure the efficient operation of the Respondent’s service.
The Complainant added at the hearing that in and around November 2020 she had a conversation in relation to moving to a different location with the Manager of the Centres and said she would be open to a move and requested that she be taken into consideration when this happens.
In saying this however, the Complainant gave evidence at the hearing that in around the end of November 2020 after returning from leave following querying with the Manager of the Centres what location she would be placed in, she was informed that she would be reassigned to Centre B.
The Complainant submitted at the hearing that she responded the same day objecting to the move to Centre B.
Despite expressing a desire to move location initially, the Complainant stated at the hearing that the move to this particular location in her view was unacceptable to her on the grounds that she could not do or be available to work nights anymore due to her family situation and also her disability and Centre B carried a requirement to work nights.
In terms of her disability, the Complainant advised the hearing that the type of work staff in Centre B engage in with the service users is more physical therefore she would not be suitable to be assigned to this unit.
The Complainant also added at the hearing that the move was unfair as other colleagues she had worked with were not sent to the Centre B and she believed this was not fair.
While the Complainant noted that in general terms her condition does not impact on her ability to carry out her contracted hours of day duty in Centre A the fact that the Respondent had reassigned her to Centre B which also may include night duty is unfair and also would have an effect on her because of her illness.
The Complainant also claims that due to her teenage son’s condition known as sleep apnoea she needed to be home at nights therefore if she was requested to work nights she could not do so.
The Complainant also submitted that due to her health issues at the time her employer sought medical opinion to review her occupational health on a number of occasions over the course of 2020 and 2021.
The Complainant submitted at the hearing that while none of the medical opinions sought by her employer or the medical opinion sought by herself through her own GP recommended that she should not be assigned to work in Centre B or at nights on her own medical grounds, the Complainant pointed out that the final occupational health report conducted in August of 2021 did recommend she should not work nights for family reasons.
The Complainant also referred to a separate occupational therapist report carried out by an occupational therapist in Tallaght Hospital on the 14 June 2021 by the occupational therapist whom she was referred to by her own GP.
While the Complainant accepts that it does not recommend any specific reasonable accommodation that is specific to any of her duties, she submitted at the hearing that the doctor in the letter states she would be an advocate for the Complainant to return to work with the support of the Employment Equality Act.
The Complainant contends that the fact the Respondent did not adhere to this is discriminatory. In this context, the Complainant contends that the Respondent failed to afford her reasonable accommodation in relation to her disability and also her son’s medical condition. |
Summary of Respondent’s Case:
The Respondent submits as follows:
The Respondent rejected the claim and furnished a comprehensive written submission on the date of the hearing which the Respondents representative made reference to while providing an overview and timeline of the actions relating to the alleged breach. The Manager of the Centres and the HR Manager at the time of the alleged breach also gave evidence in support of its position.
The Respondent is a voluntary organisation that provides a wide range of residential, respite and day services to almost 400 children and adults across the Dublin region.
The Respondent submitted at the hearing that the Complainant commenced employment with the Respondent in the role of Staff Nurse, on a permanent contract of employment. The Complainant’s normal hours of work were set at 39 hours per week, which involved day work, rostered shift work, nights and/or weekend work. Following a number of promotions, the Complainant final role was as a Enhanced Senior Staff Nurse Worker which she commenced on the 04 December 2020 until her retirement on the 07 July 2022.
The Respondent submitted at the hearing that the dispute with the Complainant in relation to the alleged breach under the Employment Equality Act first came about due to staff moves it made in accordance with the launch and implementation of its new ‘Strategic Priorities’ plan. The Respondent advised the hearing that in in June of 2020, they had written to all staff including the Complainant, informing them that some staff would be requested to move to different centres in order to ensure the efficient operation of the Respondent’s service.
The Respondent added that all staff were asked to consider a change in location within each of the centres. The Respondent notified all staff in this communication that some movement of staff, even where staff were not heard from by the abovementioned date, would be necessary based on skills needs in different locations.
On 18 November 2020, the Respondent confirmed that all planned staff relocations had been confirmed and that the relocations would be commencing on the week of 30 November 2020. The Respondent also stated that these planned relocations were decided upon in line with staff expressions of interest in addition to skills needs in different locations.
On 30 November 2020, the Complainant wrote to her manager, and requested information regarding where she would be placed when she returned.
On 1 December 2020, the Manager responded to the Complainant, stating that staff relocations had taken place on 30 November 2020. The Manager of the Centres also stated
“Taking into account your request to move from our meeting prior to leave, I have moved you to ‘’Centre B’’. I hope you will welcome this move and I will continue to support you moving forward. I have informed the ‘’Centres B’’ managers and they will place you on their rosters from the 7th of Jan when you are due to return”.
The Respondent advised the hearing that Complainant responded the same day and stated that the move to Centre B was unacceptable to her, stating that she could not do nights anymore due to her son’s language disability (the Respondent noted that this later turned out to be an issue relating to sleep apnoea). The Respondent also submitted that the Complainant also intimated that staff at Centre B are required to push service-users in wheelchairs, which she could not do.
The Manager of the Centres gave evidence on this point noting that the nature and duties required of the Complainant and other staff in Centre A were no different to that which was required of staff in Centre B. At the hearing the Manager of the Centres also gave evidence that where staff were required to work nights, they could call upon staff that worked across all units should they need assistance. The Manager of the Centres further advised the hearing that should staff need any assistance they could call upon this staff member to assist them.
On 2 December 2020, the Complainant again e-mailed the Manager asking to not be moved outside of her current centre, maintaining that she had been loyal to the respondent and flexible when needed up until this point. The Complainant stated that the move was a “punishment” and was “not right”.
On the day of the hearing the HR Manager at the time of the service gave evidence that on the 03 December he e-mailed the Complainant in relation to a number of matters she had raised as follows:
All staff moves, including the Complainant’s, were not a “punishment” and were necessary to support the Respondent’s service provision. The HR manager also stated at the hearing that he reminded the Complainant that her contract stated her normal hours of work as follows: “39 hours per week, which may involve day work, rostered shift work, nights and / or weekend work”.
The HR manger gave further evidence at the hearing that staff moves to different centres are never based on the punishment of a staff member and are always based on ensuring the services provision and business needs are met. The HR manager also gave evidence that the duties and type of service user in the centre the Complainant worked were of a similar nature and there was no distinct difference that required the Complainant to demonstrate and also have the ability to engage in more physical engagement with the service users in the centre in which the Complainant had objections of been assigned too.
The former HR manager for the Respondent also advised the hearing that the planned relocation to Centre B was not based on any other factor apart from a needs assessment and that there was a vacancy in Centre B and the Complainant’s skills were required by the Respondent to maintain service provision in that particular centre.
On 14 January 2021, the Respondent submitted that the Complainant attended a welfare meeting with management. The HR Manager gave further evidence at the hearing that he followed up after the meeting to inform the Complainant in writing that an occupational health appointment would be scheduled for 19 January 2021.
The HR manager noted that this was done in order to get a “full assessment” of the Complainant’s overall physical health and general wellbeing.
On 18 January 2021, prior to the assessment the Respondent advised the hearing that Complainant sent in her medical certificate and committed to sending on her latest pelvic X-ray (taken the previous 12 November 2020). The X-ray was subsequently shared with Medmark prior to the planned assessment. In this assessment the Complainant was certified unfit for work for one month by her GP (effective from 15 January 2021)
On 19 January 2021, the Complainant attended an occupational health assessment. The Doctor stated that the Complainant was “medically unfit” to undertake her contracted roles, however she was “medically fit” to explore her employment situation with the respondent’s HR department.
On 15 February 2021, the Complainant was certified unfit for work for 6 weeks due to stress and anxiety, along with other issues relating to back pain.
On 17 February 2021, the Complainant attended a further occupational health assessment. The Doctor stated as follows (with regard to the possibility for her to return to work):
“Unless her mobility, pain control and agility improve markedly in relation to her back and unless she experiences a good response to carpal tunnel surgery on her left wrist and improvement in her symptoms on the previously operated right wrist should she agree to undergo surgery, her prognosis for returning to her full contracted roles remains guarded for the foreseeable future…”
On 13 April 2021, the Complainant attended another occupational health assessment. Again, the Complainant was deemed “medically unfit to return to work” .
On 19 May 2021, the Respondent advised the hearing that Complainant’s GP informed the Occupational Health Doctor that his opinion was that the Complainant was “fit to resume her nursing duties”.
Based on the Complainants GP medical opinion, the Respondent advised the hearing on 4 June 2021, they referred the Complainant for another occupational health appointment.
The Respondent advised the hearing that this was done in order to gain clarity around the Complainants fitness and ability to fulfil her contracted roles and responsibilities, with particular [focus on] the manual handling aspects… clarity around her ability to fulfil her duties with the needs of the service users and clarity around her ability to fulfil her duties from a nights component perspective.
The Respondent further submitted at the hearing that in the referral as the Complainant’s GP had maintained that she was fit to return to work, this opinion conflicted with the previous two Medmark reports. Furthermore, as the Complainant was seeking a return-to-work date from her line manager, the Respondent submitted that clarity was needed on the manual handling and night aspects of her role going forward
It is in this context the Respondent submitted that the Complainant attended a further occupational health assessment at Medmark on the 08 June 2021. The Doctor stated that the Complainant was “medically unfit to return to her full contracted roles including offering service on night shifts and with the required flexibility to undertake manual handling with a full range of service users to whom she might be allocated…”.
On 9 June 2021, the Complainant was sent the abovementioned report and was informed that she had been deemed unfit for work for more than one month. The Complainant was advised to apply for Temporary Rehabilitation Remuneration if she wished, but that Medmark would have to approve such an application.
On 10 June 2021, the Complainant queried her potential entitlement to TRR, and the Respondent responded the same day, explaining that she had contacted Medmark to clarify whether or not they were in agreement that there was a reasonable prospect of the Complainant returning to work and giving regular and effective service at some point in the future.
On 11 June 2021, A Doctor of (Medmark) contacted the Respondent in relation to the Complainant’s eligibility for the TRR scheme. She stated as follows:
“In relation to [your] enquiry whether there is a reasonable prospective of [the Complainant] returning to work within the foreseeable future and fulfilling the criteria for TRR, unfortunately, there appears to be an impasse in this matter so that I cannot support TRR application on the basis of the account of ongoing physical symptoms she has described apparently preventing her from undertaking manual handling at home and also her stated long-term caring medical responsibilities for her son every night which she regards as excluding her from night shifts with both being required by your service provision needs according to your latest referral”.
On 11 June 2021, the Respondent HR department was advised by the Occupational Health Doctor regarding her conversation with the Complainant’s GP – both parties disagreed re. the Complainant’s fitness for work. No scans/reports to support the GP’s contention that the Complainant was fit for work had been received by Medmark or the HR department from the Complainant’s GP.
On 16 June 2021, the Complainant completed and signed the application form for TRR.
On 17 June 2021, a staff member in the HR department for the Respondent informed the Complainant that Medmark would not be in a position to support her application for TRR. The Complainant was invited to submit evidence from her consultant outlining her current health status and prospects for return to work.
On 18 June 2021, the Complainant requested that the Respondent send her the latest Medmark referral and report for her to bring to her hand specialist which the Respondent submitted at the hearing was sent to the Complainant on the same date the same day.
On 14 June 2021, the Respondent advised the hearing that the Complainant attended an occupational therapy appointment at regional Hospital in Dublin. The Respondent submitted that letter arising out of the appointment did not recommend any reasonable accommodations or recommendations for the Respondent to make.
On 29 June 2021, the Complainant submitted a medical cert from her GP, which certified her fit to return to work from 1 July 2021.
On 15 July 2021, the Complainant contacted the new (HR Manager) in order to request a third medical opinion (as she disputed the validity of the Medmark opinion) and to express her desire for the matter to be resolved through WRC mediation. The Respondent advised the hearing that a staff member in the HR Department responded to the Complainant informing them that they were free to refer the matter formally under the grievance procedure or to the WRC as she saw fit. The Respondent also advised the hearing that they agreed to seek a third opinion.
On 17 August 2021, the Respondent submitted at the hearing that Complainant attended the final occupational health assessment with MedWise (which the Respondent had organised in order to seek a third opinion). The Respondent submitted at the hearing that the final report on the matter stated as follows:
“In my opinion, [the Complainant] is fit for full normal duties without restriction. There are no medical grounds to recommend modifications to her work duties or work hours. [The Complainant] should be mindful to adhere to safe work practices including good manual handling techniques. I note the personal stressors and I support her request not to work at night for family reasons. However, accommodating this request on non-medical grounds is a matter for the employer.”
The Respondent submitted further that the report was very clear that there was no medical reason why the Complainant could not work as normal. The report also noted that the Complainant’s request to not work night shifts had no dimension requiring consideration on medical grounds.
Legal Arguments
Prima Facie Case of Discrimination The Respondent submitted at the hearing that the Complainant has not established a prima facie case of discrimination citing Section 85A of the Act.
The Respondent also noted at the hearing that the requirement under Section 85A has been explored in a number of cases which it referenced from its submission that included the case of Melbury Developments Limited v Arturs Valpeters (EDA0917)
wherein the Labour Court stated as follows: “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”.
The Labour Court in the case of ICON Clinical Research and Tsourova (EDA 071) stated that if:
“The Court is satisfied that if the complainant can establish facts from which discrimination can be inferred the onus of proving the absence of discrimination shifts to the respondent. The test normally applied by the Court to determine if the probative burden shifts to the Respondent is that formulated in Southern Health Board v Mitchell [2001] E.L.R. 201. This requires the complainant to prove the primary facts upon which he or she relies and to satisfy the Court that those facts are of sufficient significance to raise a presumption of discrimination.”
The Labour Court in Southern Health Board v Mitchell, [2001] ELR 201 stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:
“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”
In the instant case, the Respondent submitted that the Complainant has alleged discrimination on the grounds of disability and failing to provide reasonable accommodation for a disability, but has hitherto produced no evidence to support this allegation. The Act under s2 (1) defined disability as follows:
“In this Act, unless the context otherwise requires— ... “disability” means — (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”
The Respondent also contended that the Complainant has not produced any evidence that such discrimination occurred and has failed to name a comparator against which such alleged unequal treatment may be judged. Furthermore, the Respondent added that the Complainant has not set out how this alleged unequal treatment influenced the behaviour and decision making of the Respondent such that it resulted in the Complainant being the victim of discrimination.
The Respondent submitted on this point that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.
The Respondent submitted that Under s. 16 of the Employment Equality Acts 1998 to 2015, a person who has a disability is considered fully competent and capable of undertaking normal duties if reasonable accommodation is provided by the person’s employer.
The employer must take “appropriate measures” to enable a person who has a disability: • to have access to employment; • to participate or advance in employment; or • to undergo training;
unless the measures would impose a disproportionate burden on the employer. In determining whether the measures would impose such a burden, account shall be taken, in particular, of:
• the financial and other costs involved • the scale and financial resources of the employer’s business • the possibility of obtaining public funding or other assistance.
“Appropriate measures” in relation to a person with a disability include the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but does not include any treatment, facility, or item that the person might ordinarily or reasonably provide for himself or herself.
It is in this context that the Respondent submitted at the hearing that it sought an independent medical opinion by way of occupational health assessments on a number of the following occasions: • 2 November 2020 (Appendix 12). • 19 January 2021 (Appendix 25). • 17 February 2021 (Appendix 27). • 13 April 2021 (Appendix 29). • 8 June 2021 (Appendix 33). • 17 August 2021 (Appendix 43).
The Respondent stated at the hearing that it followed the advice contained in each of the above-mentioned reports dated above.
At the hearing the Respondent advised the hearing and made reference in particular to the occupational health report obtained on 17 August 2021 referenced above, from Medwise.
The Respondent submitted that this was a third opinion sought by the Respondent as there were some differences in opinion between the Complainant’s GP and the Respondent’s doctor. In this regard the Respondent submitted that the report clearly stated as follows:
“In my opinion, [the Complainant] is fit for full normal duties without restriction. There are no medical grounds to recommend modifications to her work duties or work hours. [The Complainant] should be mindful to adhere to safe work practices including good manual handling techniques. I note the personal stressors and I support her request not to work at night for family reasons. However, accommodating this request on non-medical grounds is a matter for the employer.”
The Respondent also stated that the report was very clear that there was no medical reason why the Complainant could not work as normal. The report also noted that the Complainant’s request to not work night shifts had no dimension requiring consideration on medical grounds.
At the hearing the Former HR Manager for the Respondent also gave evidence that the move to Centre B did not require any more manual handling requirements than that of the other Centres including the Centre in which the Complainant was assigned to before the reassignment.
The former HR manager for the Respondent also advised the hearing that the planned relocation to Centre B was not based on any other factor apart from a needs assessment and that the there was a vacancy in Centre B and the Complainant’s skills were required by the Respondent to maintain service provision in that particular centre.
The Respondent also submitted that the requirement to ‘reasonably accommodate’ did not and does not extend to the Complainant’s family member. The Respondent also added that the requirement for the Complainant to work nights occasionally is covered in her contract of employment and is applied to all nurses objectively and is based solely on the Respondent’s service provision needs.
In relation to the Complainant’s teenage child having a disability, the Respondent submitted that the requirement to ‘reasonably accommodate’ did not and does not extend to the Complainant’s family member. The Respondent’s requirement for the Complainant to work nights occasionally is covered in her contract of employment and is applied to all nurses objectively and is based solely on the respondent’s service provision needs.
The Respondent in support of this position referenced the European Court of Justice’s ruling in S Coleman v Attridge Law and Steve Law [2008] is
In this case the Respondent advised the hearing that the Court dealt with the interpretation of Council Directive 2000/78/EC which established a general framework for equal treatment in employment and occupation. The Court noted the following two Articles of the Directive in particular:
(16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability (20) Appropriate measures should be provided, i.e.,effective and practical measures to adapt the workplace to the disability, for example, adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training and integration resources.
The Court considered whether the Respondent in the aforementioned case was required to reasonably accommodate the claimant on account of her son’s disability. The Court stated as follows: Thus, as recitals 16 and 20 in the preamble to Directive 2000/78 indicate, the measures in question are intended to accommodate the needs of disabled people at the workplace and to adapt the workplace to their disability. Such measures are therefore designed specifically to facilitate and promote the integration of disabled people into the working environment and, for that reason, can only relate to disabled people and to the obligations incumbent on their employers and, where appropriate, on the Member States with regard to disabled people.
The Respondent submits that, in line with the above CJEU precedent, an employer is not required to reasonably accommodate the disability of someone who is connected to an employee. Practically, the Respondent in the instant case was not required to allow the Complainant to not work any night shifts on account of her son’s disability.
In its closing arguments the Respondent submitted that the respondent has fully exhausted its obligations under the Employment Equality Acts (specifically s. 16 which relates to reasonable accommodation) and maintained that it treated the Complainant very reasonably, sensitively and fairly and in a non-discriminatory manner.
The Respondent added that as the burden of proof rests with the Complainant, it is the Respondent’s position that the Complainant has failed to provide facts from which it may inferred that discrimination has occurred and has therefore failed to establish a prima facie case of discrimination.
The Respondent respectfully submits that the Adjudication Officer finds that the Complainant was not discriminated against by the Respondent on the grounds of disability. |
Findings and Conclusions:
The essence of this complaint is that the Complainant alleges that they were discriminated on the grounds of disability due to the Respondent’s failure to allow the Complainant to work in a location suitable for her needs in relation to her disability.
The Complainant alleges that she was discriminated against by the Respondent due to her disability and that the Respondent failed to provide her with reasonable accommodation.
The Complainant also alleges that the Respondent failed to provide a reasonable accommodation based on her disability and also her teenage son’s disability due to the Respondent’s failure to allow the Complainant to work in a location that did not require her to work nights.
The Respondent refutes the claim of discrimination. The Respondent in this regard noted at the hearing that while they engaged with the Complainant at all times in relation to her objection to been moved to a different centre, they were still unclear how her objection to this location related to her disability.
The Respondent also maintained that it adhered at all times in respect of the recommendations made in the medical assessments and reports conducted with the Complainant which outlined the Complainants needs particularly in respect of her duties and also her suitability to work nights.
The Respondent also noted that it has never been provided with a medical report from the occupational health assessments stating that the Complainant cannot undertake night duty or work specifically in Centre B in which she was reassigned too.
The Respondent maintains also that the Complainant is seeking reasonable accommodation which the Occupational Health Consultant has not deemed necessary.
The Respondent submits, therefore, that the Complainant has failed to establish a prima facie case of discrimination which would allow the burden of proof to be shifted to the Respondent.
In addition, the Respondent submitted that the Complainant has failed to discharge the burden of proof required in equality cases and consequently, the herein claim cannot succeed.
The applicable law Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to the Complainant.
If the Complainant succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.
In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 it be of sufficient significance to raise a presumption of discrimination. However, it 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 …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) ….”.
Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".
The first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:
“disability” means—
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person;”
The definition of a disability has been interpreted in an extremely broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU).
Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt BoligselskabC-335/11 and C337/11 where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”
The Complainant advised the hearing that she is a person with a disability. The Complainant advised the hearing that she suffers from Carpel tunnel syndrome and also back pain which along with her family situation prevents her from working nights.
During the hearing, the Complainant provided and referred to medical documentation which make reference to her disability.
I also note that the Respondent referred the Complainant to an Occupational Health Consultant on numerous occasions. I note that on review of the findings of all of these reports I have found no reference that assigning the Complainant will not be suitable due to her disability.
On further note, I also note that no report notes how working nights may be unsuitable either relating to her disability.
In addition, following the final assessment carried out on the 17 August 2021, the Complainant attended an occupational health assessment with MedWise. The report stated as follows:
“In my opinion, [the Complainant] is fit for full normal duties without restriction. There are no medical grounds to recommend modifications to her work duties or work hours. [The Complainant] should be mindful to adhere to safe work practices including good manual handling techniques.
I note the personal stressors and I support her request not to work at night for family reasons. However, accommodating this request on non-medical grounds is a matter for the employer.”
In this regard, I am of the view that the opinion of the Occupational Health Consultant dated 17 August 2021, effectively deprives the Complainant of persuasive medical evidence to support her request not to work in Centre B or also work nights.
During cross examination, I also note that the Complainant accepted that she had not been specific with her employer in relation what duties she could not do due to her disability that were of a different nature to what she had done in the location she was previously assigned too.
While I note the Complainant referred to a separate occupational therapist report carried out by an occupational therapist in a regional hospital in Dublin on the 14 June 2021 by the occupational therapist who the Complainant was referred to by her own GP, I am not satisfied by the Complainants evidence that the outcome of this report justified why her employer could not reassign her to ‘’Centre B’’ .
While the occupational therapist in the letter states they would be an advocate for the Complainant to return to work with the support of the Employment Equality Act they do not recommend any reasonable accommodations or recommendations specific to the Complainant as to what if any reasonable accommodations are required.
On further review of this letter, I also note that the occupational therapist states they are unclear as what exactly is the Complainants issue with returning to work.
In these circumstances, I am not convinced with the Complainant’s evidence of how the potential to work nights from time to time or in Centre B’ as opposed to Centre A was not possible due to her disability.
Lastly, in addressing the matter in relation to the evidence provided by the Complainant that by way of the Respondent knowing the Complainants personal circumstances and also knowing that the Complainant was concerned that the potential requirement to now work nights in Centre B’ may effect the Complainant caring for her child due to his medical condition, that the Respondent in these circumstances was obliged to take the steps set out in Section 16 of the Act.
The wording of the European legislation and the related national legislation in this regard is all about enabling the person with the disability to participate in the workforce ‘promoting their integration’. ‘This (reasonable accommodation) means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment.’.
On further note, there is nothing in the legislation which provides for Section 16 of the Act to be triggered because a person related to the employee, but who is not themselves an employee, has a disability.
Accordingly, there is no stateable basis for a claim of reasonable accommodation based on the Complainants family member in this case her son having a disability and this aspect of the complaint is not well founded.
In such circumstances, I am satisfied that the Complainant has failed to establish a prima facia case of discrimination on grounds of disability.
Accordingly, I am satisfied that the Complainant was not discriminated against by the Respondent on grounds of disability or in respect of a failure to provide reasonable accommodation for a disability. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
In reaching my decision I have taken into account all the submissions, written and oral that were made to me.
In accordance with section 79 of the Employment Equality Acts, 1998 – 2015, I find that the Complainant has failed to raise a prima facie case of discrimination on the grounds of disability contrary to the Acts.
Accordingly, I decide that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts.
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Dated: 8th March 2023.
Workplace Relations Commission Adjudication Officer: Paul McKeon
Key Words:
Employment Equality Acts, 1998 to 2015 – Disability – Section 16 - Reasonable Accommodation – Appropriate Measures |