Complainant

Respondent

Parties

Ann  Walsh

Donegal Education & Training Board

(The Abbey Vocational School)

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

 Ivan Toner BL instructed by Gallagher Brennan Solicitors

Terry McNamara , IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042903-001

03/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042903-002

03/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00042903-003

03/03/2021

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

CA-00042903-004

03/03/2021

The Complainant worked as a cleaner for an Education Training Board (ETB) school, the Abbey Vocational School, in Donegal Town, until as a result of a repetitive strain injury she went on sick leave. Her sick leave lasted for until the Respondent’s Occupational Health doctor declared her to be fit to return to work but only on restricted lighter duties. The issue in this complaint was whether the lighter duties recommended by the Occupational Health doctor could be accommodated by the Respondent or whether the recommended restrictions were fundamentally incompatible with the requirements of the job as a cleaner. The Respondent decided that the requirements of her work, which was a physical job, and the way that cleaning was managed in the school meant that it was not possible for her to do only restricted duties.

The Complainant’s complaints are (1) failure to provide her with a contract in writing and failing to provide her with terms and conditions that she had verbally agreed to; (2) unfair dismissal and (3) failure to make reasonable accommodation for a disability.   

The Complainant gave evidence under affirmation as follows:

She worked for the Respondent as a canteen assistant from 2001 – 2015.

In 2015 she started working for the Respondent as a cleaner (alongside her work as a canteen assistant) but she did not receive a new contract to reflect her new duties.

In 2016 she approached the school principal with a grievance about a heavy workload, an unfair in distribution of cleaning duties and heavy lifting. She complained that the job that had been offered verbally was to take over the cleaning duties of her predecessor, not the onerous work that she was now expected to do.  Despite her grievance, nothing of significance was done to remedy this and in November 2018, due to a repetitive strain injury she went on certified sick leave.

The Complainant’s sick leave lasted for two years until September 2020 when arising out of a medical assessment by Respondent’s Occupational Health doctor on 13 August 2020 the Respondent was advised as follows:

“Ms. Walsh remains unfit for her usual role but could be considered for an alternative semi-sedentary role with restricted manual handling duties (less than 5kg) and restriction of tasks which require frequent stooping/bending, if this can be reasonably and practically accommodated. In the view of the nature of Ms. Walsh’s condition it is probable that restricted duties will be required in the long term.”

A copy of this was sent to the Complainant by the head of HR, Ms. Eileen Doherty who, on 4 September, advised the Complainant that the report had been forwarded to the school principal who would be asked to consider feasible options.

On 10 September 2023 the Complainant received a letter from Ms. Doherty, (HR) advising her as follows:

“…I have been in contact with Miss Geraldine Diver principal of Abbey Vocational School Donegal Town in relation to the Medmark letter dated the 13th of August to ascertain what options if any are available. Having consulted with the principal on the 7th of September 2020, and having considered the matter fully, I regret to advise that it is not reasonable or practical to accommodate an alternative semi-sedentary (role) with restricted manual handling duties including restriction of tasks which require frequent stooping/bending attached to your role as cleaner in the Abbey Vocational School.

I advise that the options remaining to you are as follows,

1.       Submit an application for a period of unpaid sick leave. This period of unpaid sick leave is for a maximum period of 18 months up to the 28th of February 2022. Information in this regard was forwarded to you in our letter dated the 18th of August. Following that period of unpaid sick leave, your situation may have improved to facilitate a return to your work as a cleaner in the AVS.

2.       You may be entitled to retirement on the grounds of ill-health. Please speak to Miss Margaret Mageean in relation to further information in this regard. The decision to accept or reject an application for retirement on the grounds of ill-health rest solely with Medmark Occupational Health.

I regret the situation cannot be more favourable in the circumstances. Should you have any queries in relation to the above please contact Paula Crumlish HR SSO in the first instance.

Regards..”

Arising from this the Complainant submits as follows:  

Terms and Conditions of Employment Information Act 1994 as amended (two complaints)

CA-00042903-001:  The Complainant did not receive a contract in 2015 when she changed from being a canteen assistant/cleaner to being a school cleaner. She remained on the 2010 contract that she had for the previous role which was not a correct statement of the work that she did from 2015 on.  

CA-00042903-002: The contract was not the same as the terms that she had been offered to her verbally and by email. The job that she was offered was the role that had been done by her predecessor, which was much less of a workload than what she was required to do. Her contract did not state that she was required to used industrial heavy vacuum cleaners or move industrial size rubbish bins.

Unfair Dismissals Act 1977 as amended

CA-00042903-003: The Complainant contends that the Respondent’s letter to her dated 10 September 2023 was a dismissal. Her employment was effectively terminated because she was being told that the Medmark recommendation (of allowing her return to work on restricted duties) would not be adopted by the Respondent and her only options were to continue on sick leave (without being paid) or elect to take early retirement. There was nothing in the letter that allowed her to believe that she could return to work.

Alternatively she submitted, that in the event that the Adjudicator decides that this was not a letter of dismissal, a decision was made on 5 and 6 September 2020 around her capacity to work and as part of that assessment she was not afforded any opportunity to engage with the Respondent between their receipt of the Medmark report and a decision being taken as to what restricted duties she might be capable of carrying out. They decided that she was incapable of returning to work without consulting her.

The School Principal and the Assistant School Principal decided that she was incapable of returning to work. Natural justice requires that she should have been advised that this decision was being considered at that time and her input should have been considered. Failure to do so renders this decision, to be unfair.

Employment Equality Act [EEA] 1998 as amended

CA-00042903-004: The Complainant submits that the Supreme Court decision of Daly v. Nano Nagle [2019]IEHC 63 expanded the obligations on Employers to employees who have a disability and who are seeking reasonable accommodation in respect of their work.

First, she submits that following the receipt of the Medmark report and the recommendations contained therein the failure to engage with her as to what reasonable accommodation she would accept or even what her views were on her capacity to work failed at the first hurdle to make reasonable accommodation for her disability. Had they discussed it with her, they might have realised that she was willing to do other restricted work that was capable of being accommodated instead of conducting a risk assessment which entirely excluded her. How could accommodation be described as reasonable if she was not given a chance to engage with the assessment of her capacity to work?

Second she submits that due to the particular and unusual circumstances of that time (due to the Covid pandemic) additional funding had been put in place for all schools for Covid cleaning. This meant that per week an additional 10 hours were each given to 2 cleaning staff and 5 hours to a third cleaner. Within this extra resource of 25 hours of additional cleaning per week it should have been possible to carve out a sanitising cleaning role that met the Medmark recommendation and could have allowed her a return to work on restricted duties. There is nothing to indicate that this any consideration was ever given to this possibility.

The Complainant was cross examined as follows:

Even though the Complainant contends that she considered herself as dismissed on 10 September, she admitted that she continued to send in sick certificates to the Respondent after that, which would suggest that she didn’t consider herself as dismissed. She explained that she did so because she didn’t know how to respond to what had happened and, on the advice of her partner, she kept sending in the certificates as she had done before she was dismissed and the sending in of sick certificates should not be treated as a concession that her employment had not ended.

When asked why she didn’t apply the terms of the employee handbook by raising an internal grievance with the Respondent after she received a letter of 10 September 2020 or seeking clarification on whether her employment had ended. She said that she had hoped the school principal would have found a way for her to continue working on restricted duties. She was disappointed when that didn’t happen.

When asked why she skipped 3 of the internal grievance stages and complained to the WRC without exhausting all internal procedures, she said she never looked at the grievance procedure or handbook but she believed that her employment was over when she received the letter on 10 September because there was no paid employment options in either of the two options that she was offered. 

Asked about retirement/ pension queries that she raised with the Respondent on 9 September 2020 (which would be incompatible with her assertion of dismissal) she said that these were inquiries only.

When asked why, despite the last paragraph of the letter of 10 September inviting her to raise queries with the Respondent, why she didn’t do that and seek clarification of her position instead of waiting until the following March making a complaint to the WRC. The Complainant said that she did not need clarification. 

When it was put to her that she was incorrect to say that the Respondents had not taken any ameliorative action when she raised complaints about her workload in 2016. The caretakers helped out the bins, she did a manual handling course, teachers and students were instructed to increase their cleaning responsibilities, and that a meeting was held in 2017 with the cleaning staff and the principal and the Complainant agreed, as did other staff that the work load had improved and was now acceptable. The Complainant accepted that she had not raised concerns at the meeting because she would have been complaining about the other cleaners.

End of cross examination

Evidence of Pat McCusker (by affirmation) on behalf of the Complainant was as follows:

He assisted the Complainant with her case.

He thought that she was treated dreadfully after working at the school in different capacities for 20 years.

He considered that the Complainant was dismissed by the letter of 10 September 2020 and it was because of her incapacity, her disability, that she was dismissed. She was given only two options, neither of which involved paid employment so what else could that be, other than a dismissal?

He knew about the problems that she had in 2016 and they both felt that she was given much more work than she had agreed to when she took over her predecessor’s cleaning job. If her job was reviewed by the Respondent, it never lessened in workload.

He advised her to keep sending in sick certificates after September 2020 despite feeling that she had been dismissed because it proved to the Respondent that her health condition remained the same, which was bad.

The Respondent should have invited her to a meeting to discuss what she felt that she had the capacity to do. The Medmark report expressly suggested an accommodation if it was practical or reasonable. If the Complainant had been given an opportunity to discuss what she could and couldn’t do, a solution would have been found.

He had written to the Respondent about her pension entitlements. This was before the Medmark report and had nothing to do with that decision.

Mr. McCusker was cross examined as follows:

When asked why, as her advisor, did he not advise her to contact Ms. Doherty, the Head of HR, as the last paragraph of the letter of 10 September had advised, he said that he tried to contact the ETB but got no response. He said that he instead attended a solicitor and a number of letters were sent by that solicitor on the Complainant’s behalf to the Respondent so it is not true for the Respondent to say that no communication took place between September 2020 and when the WRC complaint issued in March 2021. Several letters were sent.

He said that that the reason that he did not advise her to invoke the grievance procedure after receipt of the letter or to get confirmation that her employment had been ended was because the dismissal letter had been clear. Thereafter he delegated the issue to his solicitor, whose letters were not replied to. One letter in particular dated 2 December 2020 asked for the Complainant to be given a job which took account of her health condition. That was not even replied to by the Respondent.

When asked was the 10 September letter not simply a response to the Medmark report given that her sick pay (in various guises) had come to an end; a clarification that she could thereafter either take unpaid sick leave to see if she would get better or retire early – he said that either way it stated that she wouldn’t be working and wouldn’t be paid.

When his solicitor inquired with the Respondent about her pension, they said that they couldn’t advise on the value of that until the Complainant was applying to draw down the pension, so she could not consider the early retirement option unless she was opting for it. She was caught between stools in terms of the decisions that were available to her.

The reason that the dismissal date of 10 September 2020 was used in the WRC complaint form was because after attempts were to clarify the pension option were unfruitful, they went back to the decision that was communicated on 10 September. That was when the die was cast.

When the Respondent did not reply to the solicitor’s letter of 2 December 2020 a pre-WRC warning letter was sent and it was only at that point that the Respondent offered to meet with the Complainant and by then it was too late.

Mr. McCusker said that he filed the WRC form for the Complainant because the solicitor was too busy to keep dealing with the matter.

He was asked whether by September was it not the case that the Complainant’s sick leave had run out. He said it was. He was asked that given that was so, and given that she was still unfit for work, did the September 10 letter not merely reflect the fact that she could no longer be paid if she continued to be unfit for work. He said that the Medmark recommendation should have been followed and a position found for her which was suitable to her ability.

Cross examination ended.

Evidence on behalf of Complainant ended

Evidence on behalf of the Respondent was provided by Eileen Doherty (HR) Geraldine Diver (School Principal) and Ronan Doherty (Assistant School Principal)

The evidence of Eileen Doherty, HR head (under affirmation) was as follows:

She has been employed by Donegal ETB as HR head since July 2017.

The Complainant began her employment in 2001, as a canteen assistant. In 2015, she sought a cleaning job after one of the cleaners retired. The complainant was offered a job as a cleaner for the respondent. She was not offered the identical duties as the previous cleaner had just prior to that lady’s retirement. The complainant had agreed with her job description when she took the job, and her duties reflected that.

The Complainant did raise issues with her, as school principal, in 2016, and these were comprehensively dealt with. The principal put ameliorative measures in place which the Complainant agreed to.

The sick leave policy is that there is a maximum of three months of full pay in a year. This is followed by a maximum of three months at half-pay. In total there is a maximum entitlement to six months paid sick leave in a rolling four years.

The complainant commenced her sick pay on the 19th of November 2018. On the 27th of January 2019, she was reduced to half pay. On the 28th of March 2019, her paid sick leave was exhausted. On the 29th of March 2019 the complainant went on temporary rehabilitation remuneration (TRR) which lasted until the 28th of August 2020. It was at that point that her pay ended. Throughout her sick leave the expectation of HR was (and this is a condition of the entitlement to TRR) was that she would become fit to return to work. But the entitlement to TRR ends after 18 months. The reason that the Medmark assessment was done on 13 August 2020 was precisely because unless she was fit to return to work, given that all her paid sick leave and TRR were exhausted, that her pay would stop at the end of August and she would not be entitled to anything else other than unpaid sick leave. The letter dated 10 September 2020, simply reflected the situation as it then was. It was not a dismissal. The regret expressed in the letter was because unless she returned to work, there was no further possibility of extending her paid sick leave. The regret was that unless she returned to work, she could not be paid. It was not a regret that she was being dismissed because she was not.

The only basis that she could’ve been paid was if she had returned to work. The Medmark report found that she wasn’t fit to work and that the only way that she could return to work was if she could do restricted duties. The letter of the 4th of September informed her that the possibility of this would be considered by the school principal. That is what happened. On 5th and 6th September, the school principal considered whether the restricted duties outlined in the occupational health report could be accommodated by the school. It was decided that they could not. Thereafter, the Respondent was back to where they were before. The sick leave was exhausted, TRR was exhausted. She could not continue to be paid. That was where the two options came from.

The position was a cleaning job and therefore it was a physical job, but most physical work (bending and stooping) was excluded by the Medmark recommendation. The Respondents hands were tied. The report conditions were fundamentally incompatible with the job that she was employed to do.

A very careful assessment was conducted, by the school principal and the assistant school principal. They broke down the cleaning job into its component parts and an assessment was made of each of the component parts  - whether an accommodation, in accordance with the restrictions in the report,  was possible. The decision was made that after the restrictions eliminated so many of the job functions, there was very little of the cleaning job left.

The letter of the 10th of September was not a dismissal letter. There was no termination date. It was just HR going through the sick leave policy which had become exhausted. The Complainant was well aware of the sick pay policy and she knew this. In September 2020 the Complainant was still entitled to keep her job secure for a further period of unpaid sick leave, following which she would have been assessed again by Medmark to see if she could then return to work. And if she was found to be fit for work then, or have reached an improvement to permit a return to duties that were practical and reasonable to accommodate, that is what would have happened.

The Complainant didn’t make contact directly with the Respondent after September 2020, so HR assumed that she had decided upon the unpaid sick leave option. Particularly given that the Complainant was still sending in sick notes.  She made queries about pensions during this time but no decision on the two options were communicated to the school or to HR. It was assumed that the Complainant had taken the unpaid sick leave option.

The witness was cross examined as follows:

She accepted that between September 2020 to March 2021 (when the WRC complaint was made) was a challenging time from the Covid perspective. If some of the information that the complainant’s Solicitor sought, including the letter of 2 December, was not replied to it was because of these pressures.

She accepted that while the letter of 2 December 2020, did include a request for an alternative role to take account of the Complainant’s  health circumstances, but given that that a decision had already been taken that that was not possible, that letter wasn’t responded to. There was no direct communication between the Complainant and the respondent between September 2020 and March 2021.

When asked was a new carved-out Covid sanitising role for the complainant considered given that sanitising work was then required and extra funds from September 2020 had been made available by the department of education for this work, the witness said that as far as she recalls that was not part of the discussion.

She said that had the unpaid sick leave continued (until it too was exhausted in February 2021) it was the witness’ intention to revert back to Medmark for another review to see if the Complainant could come back to work. At that point a decision would need to have been taken about ending her employment. But until February 2021 she was entitled to remain as an employee and given a chance to return if she got better. In the meantime, the split shift replacement substitute cleaning staff continued to cover her hours as indeed as they have done since. As far as the Respondent is concerned, the complainant’s employment has never ended, even as of today.

The school principal did the risk assessment because she and the assistant school principal, were on the ground and they knew the cleaning needs of the school and the job description. It was the assistant school principal whose main responsibility was to oversee and supervise the ancillary staff in the school.

The quality of the risk assessment that was done on 5 and 6 September was high, particularly given that the school was about to open and the Covid pressures were high at that time. It was a detailed and thorough assessment.

The letter of the 10 of September still permitted the complainant to return to work, which is incompatible with it being a dismissal letter.

In terms of the request for reasonable accommodation in the solicitor’s letter of the 2nd of December 2020, which wasn’t responded to, the witness responded that the accommodation that was being requested, was not reasonable. Too many features of the job function would have needed to be stripped out of the job and these couldn’t be distributed amongst the rest of the cleaning staff who are already overburdened by the additional cleaning that was required as a result of Covid. It was too onerous on the cleaning management system and the other cleaners for the Respondent to be able to accomodate what was suggested in the Medmark report.

The evidence of Geraldine Diver, School Principal (under affirmation) was as follows:

Ms. Diver is the principal of the respondent school.

The Respondent is the only secondary school in Donegal town. There were 700 students attending the school but in September 2020. There’s been a huge expansion in the school in recent years. In 2020 there were 80 teachers,  15 SNAs, 2 administrators, 1.5 caretakers and three part-time cleaners. Two of the cleaners worked 20 hours per week and the Complainant worked 30 hours per week.

The principal knew the complainant well and would talk to her on a regular basis when she came into the office, although it was primarily the deputy principal who oversaw all the ancillary staff, including the cleaning staff.

After the Complainant made complaints comparing her workload to her predecessor, the principal explained to her that the Complainant was not replacing her predecessor. Rather she was taking on a cleaning contract. The Complainant seemed to accept this.

Between August 2015 and May 2016, the Complainant raised other issues. She found the vacuum cleaner too heavy. She found the bins heavy particularly when they needed to be carried down steps. Cleaning the home economic kitchen involved a lot of work. The study rooms in the evenings were dirty. Chewing gum was under the desks. The staff room was left in an untidy state.

The Complainant also worked between 12.30 and 1.30 assisting in the canteen so she had two jobs. The principal became concerned that the Complainant, had no break-time. However, the Complainant preferred to complete her cleaning hours by 5.30pm to get home. Even though her hours were meant to be 2 to 6pm each day (to allow for cleaning the after-school study area, which ended at 5.30) the principal was happy to alter these hours to suit the Complainant. The Complainant’s hours became 10 am to 12 pm five days a week. 12.30-1.30 in the canteen, (which was for a separate catering company.) Then on Mondays and Tuesdays she worked 2 to 6 pm and on Wednesdays,  Thursdays and Fridays she worked 1.30 to 5.30pm. So the Complainant really didn’t get much of a break, which the principal was concerned about and spoke to HR about this, but given that was what the Complainant’s preference was, that’s what her hours became.

To ameliorate the Complainant’s concerns, in 2016 the school purchased a lighter vacuum cleaner for the Complainant to use. The teachers were told to get students to keep rooms more tidy. The number of bins were doubled. 50 new benches were placed around the school and bins were put beside each one. A notice was put up in the staffroom to clean up after themselves. The principal spoke to all the teachers about lessening the workload of the cleaning staff. The teachers were asked to instruct the children to put chairs on desks at the end of the day. The cleaning staff were advised that every room did not need to be cleaned every day. Cleaning of the library was reallocated to the teachers. The assistant principal redid the cleaning management maps of the school and reconsidered the distribution of cleaning work amongst the cleaning staff, which was amended, and all the cleaning staff agreed to this.

The principal entirely refutes the suggestion that nothing was done in response to the Complainant’s grievance in 2016-17. Not only was all the above done but the Complainant was asked if she agreed to the redistribution of work plan, and she agreed to it.

When the Complainant went on sick leave in November 2018, she was replaced by two split shift substitute, cleaners who remain there today.

The principal tried to contact the Complainant during her sick leave on a number of occasions. She texted the Complainant and phoned her but got no response. The principal found that challenging and spoke to HR about it. When she read in the Complainant’s WRC complaint that her attempts to contact the Complainant were considered to be a harassment, that saddened the witness, given that she had only wanted to find out how she was and see if she was getting better to see if she could come back to work.

The Occupational Health assessment of the Complainant coincided with the ending of her TRR and the return to school after the Covid break in September 2020. The Covid return to school reopening involved high-end preparation work managing social distancing, removing internal school walls to accommodate social distancing, mounting signage around the school, introducing social distancing management systems, providing hand sanitisers, managing pods, managing different break times. There was a huge amount of work involved.

The August 2020 Medmark report recommended that the work to accommodate the Complainant’s needed to be semi sedentary, lifting items not heavier than 5 kg with limited bending and stooping. They were the criteria that the Principal and Assistant Principal applied when conducting the risk assessment.

On 5 and 6 of September, the witness and the assistant principal carried out a thorough risk assessment to see whether the Medmark recommendations could be accommodated.

The data was set out on an excel spreadsheet on which all the component functions of the cleaning job were set out and the restrictions were applied to each part to determine if the task could be completed if a worker was on restricted duties. From the assessment it became clear that the accommodation simply couldn’t be made. Of the 20 plus different functions only three did not require not lifting more than 5kg, no bending or stooping and being semi sedentary.

The school cleaning system operated on different map areas, for which each cleaner was responsible and accountable for. This map was central to ensuring that cleanliness and safety was accountable to each of the cleaning staff. This accountability was particularly important going back to school in September 2020. The mapped areas allowed the school principal to monitor the work of each cleaner. Slip streaming in the Complainant for a small number of specific functions that she was capable of doing in other cleaner’s areas and at the same time requiring other cleaning staff to cover her heavier duties in her area simply would not have worked.

This was so for a number of reasons. Accountability for the quality of cleaning could not be monitored if the mapped areas became shared.

Also the other cleaning staff were already maxed to capacity, particularly given the extra Covid cleaning, and they simply would not have been able to take on the heavier, lifting and the hoovering, lifting chairs and the bending and stooping jobs in the Complainant’s area.

Being able to lift more than 5 kg could be managed perhaps but being able to bend and stoop is an intrinsic necessity of the job.

No funds were available to hire additional support cleaning staff, so the accommodation that was sought by the Complainant simply wasn’t possible. It would have been a disproportionate cost to the management of cleaning in the school and it would not have been safe.

In terms of creating a carve out roll of Covid sanitising that wasn’t possible either. It was considered by them but it wasn’t realistic. The complainant might have been able to wipe down the taps in the bathroom and door handles but the person cleaning the bathroom also needs to clean the toilets which necessitated bending and stooping. It wasn’t practical that the Complainant would only sanitise the door handles but other staff would have to sanitise both high and low on the same door or that the Complainant would clean the bathroom sinks but not the toilets. It was not feasible.  

And while 25 additional Covid cleaning hours had been granted to the school a lot of this was heavy work; for example wiping down the walls and doors of isolation rooms, lifting chairs and desks, washing floors, sanitising PE equipment (including low equipment such as rowing machines) so it was not true to say that Covid cleaning was cleaning taps and door handles and that was all. It was not only light work.

But the main problem was that it would have resulted in the others cleaning staff having a lot more heavy work which, given their already heavy workload they were not capable of taking on.

The witness was cross examined as follows;

More cleaning staff were always needed. Additional funds were sought and received in August 2020. Increasing the Caretaker role from half position to a full position helped matters because then on, the caretakers could help lift bins for the cleaners.

The witness said that the issue was with the restricted work being considered was they couldn’t guarantee that the Complainant wouldn’t be required to lift a bin that was greater than 5 kg. No one can predict what a person has put into a bin in advance. If filled water bottles are put in bins a half filled bin could still be heavier than 5 kgs.

The principal accepted that the replacement cleaning staff while the complainant was on sick leave had asked her about their positions and job security, but she felt no pressure by this. She always told them that they were on a sick leave cover contract, as they still are.

Her concern about the Medmark report was also that the opinion of Dr. Coleavey was that accommodating the Complainant was stated as being likely to be a long-term issue.

The principal didn’t ask the ETB for more funding for additional cleaning staff because that is calculated on the basis of the number of students in a school so she knew that further funding, in additional to the Covid cleaning funding, would not be given.

The risk assessment was done in the weekend before the school opened on the 5 and 6 September. An ETB risk assessment template was used by them and another assessment template was created relying on the Complainant’s job description. That way both an objective and subjective assessment was conducted. Both assessments came to the came conclusion.

When asked, did the principal contact the Complainant and discuss the assessment with her. She said she did not and the reason she gave was that the criteria were clear and could not be departed from and also that she had attempted in vain to contact the Complainant for months. The principal believed that the Complainant didn’t want her to contact her. That belief became justified later given that the Complainant’s WRC complaint makes reference to feeling harassed by the Principal at that time.

The Principal thought it was best instead to deal with the assessment formally and respond to the question that the HR had raised for her, and make a decision on whether the accommodation as recommended by Medmark, could be made.

When asked was she rushed or distracted about the Covid pressures and the school reopening she said that if anything she was more aware or focused on safety and the proper cleaning of the school so she certainly was not distracted when they conducted the risk assessment. Both she and the assistant principal were focussed on the Medmark 3 criteria and the cleaning work that needed to be done.

She knew from mid-August 2020 that she would be getting extra Covid funding but that was not surplus funds because the extra Covid cleaning was vast.

In terms of considering creating a carved out Covid cleaning role, they did not discuss it with the other cleaning staff because that would’ve necessitated explaining why they were asking what they didn’t feel free to do. Her and the Assistant Principal did discuss with themselves however. The Principal accepted that she may not have explained that HR.

Ultimately the decision was made on the basis that the Complainant’s job was fundamentally at odds with the Medmark recommendations and the heavier workload of the Complainant simply could not have been redistributed to the other cleaners.

Ronan Doherty, Deputy Principal, gave evidence (under affirmation) as follows:

Mr Doherty has been the deputy principal of the Respondent school since 2010.

Apart from teaching part of his role is managing the ancillary staff, including the SNAs and cleaning staff.

He has a background in construction and has knowledge of buildings, safety and management of building systems.

As part of this he managed the cleaning staff. To do this, he split the school into three cleaning areas and put these on a map. He then could monitor the work that each cleaner does in respect of their accountable area. If one cleaner is absent, he managed the workload with the other staff. But the norm is that each cleaner cleans their area and is accountable for the quality of their cleaning within their area.  If they have any problems, they come to him. He would speak to each cleaning staff member every day.

In 2015-16 the Complainant raised concerns about her duties. She had reported them to the principal and finding a solution was delegated to him.

As the principal outlined in her evidence each area of concern raised by the Complainant was addressed in detail and the distribution of work was reviewed.

The school building is 5500 m² in area. The gym is an additional 800 to 900 m². There is a lot of areas to clean. But it is an old building which is harder to manage than a new built school.

Following the review of the distribution of work, all the cleaning staff agreed with the new mapped areas and distribution of work. As part of the attempts to alleviate the cleaning staff work, some of the caretakers tasks were subcontracted to external service providers. This freed up the caretaker to take up some of the heavier work of the cleaning staff, helping to lift bins etc.

There is no doubt that the cleaning staff and the Complainant worked very hard. They were then, and are now, very highly valued within the school community. But the work that they did was fairly distributed and the adjustments that were made in 2016-17 did lessen the load of the Complainant.

Moving on to the late summer of 2020. The principal asked Mr. Doherty in light of the Medmark report to help her conduct a risk assessment on whether restricted duties for the complainant could be accommodated in a cleaning role.

The risk assessment process considered all aspects of the  role, which were identified and the tasks within each aspect was cross checked with the Complainant’s needs. Each aspect of the role was scrutinised to see if a meaningful role was left and whether it was feasible to accommodate the complainant.

The assessment was made it easier because of back-to-school plans that had been prepared in light of the return to school post Covid.  A cleaning checklist had been prepared for every room in the school. The general cleaning duties within each room were set out and the Covid cleaning duties within each room were set out. So we had a very clear view of precisely what work needed to be done, both the basic cleaning work and the additional Covid cleaning.

When the principal and the witness looked at the tasks, it was clear that almost every aspect of the cleaning job involved physical work, and when you eliminated bending and stooping, there was very little work that she was capable of doing left.

A purely Covid sanitising role was considered by them, however, that was not feasible for a number of reasons. It was not feasible from the cleaning management respect (an overlap of staff working within the mapped areas created problems in terms of accountability of work done) but also for the Complainant it would have been challenging. If she was to do Covid cleaning throughout the whole school that would’ve necessitated a huge amount of walking covering all the mapped areas in a 5000 m² building going up and down old sets of stairs.

But the main reason that the accommodation was not possible was that it would have meant the other cleaning staff going into her area to do her heavy duties in return for her doing their lighter duties and the other cleaners were maxxed out work-wide as it was.

The 5kg lifting was also a problem. Bales of blue tissue roll are 5.8 kg. Packets of toilet rolls are 5.6 kg. Standard chairs are more than 5kg. It was not possible for school management to assure her that she wouldn’t be required to lift weight over 5 kg.

The cleaning job that was required to be done did not allow for the conditions contained in the Medmark report. It was not practical or feasible.

The additional Covid cleaning funding was used for Covid cleaning. Each of the cleaners needed to do this extra work which needed to be paid for. For reasons already explained the job could not be swapped into a job of lighter duties only. And the additional Covid cleaning was heavy in any event. Unlike prior to Covid, at every break and lunchtime, the cleaners had to empty normal bins and the new sanitising-wipe bins, wipe down doors and taps, wipe down all surfaces in each room, sanitising isolation rooms, using sanitising fogging machines, on top of the general cleaning every day.

There was a huge extra workload for the cleaning staff in the corridors and the assembly room also. It was too big a school to go around. A reduced role for the complainant of sanitising only could not have dovetailed with the all the other work that needed to be done.

Everyone, teachers, ancillary staff and students were maxxed out at this time. For such a big and old school building maintaining an accountable cleaning system for the entire school was no small undertaking.

Mr Doherty was cross examined as follows.

When asked if in response to her 2015/16 complaints the solutions were found arising from discussions that the principal had with the complainant, the witness agreed that they were.

When asked if the risk assessment was likewise conducted involving discussions with the complainant, the witness said that no, they were operating from the Medmark recommendations only.

When asked if a timing exercise was conducted of whether lighter duties could constitute a cleaning position, or even a half time cleaning position he said no. They did not consider a half position because they had not been asked to do that. The Medmark report had not suggested reduced hours.  They were considering the position that she had held previously, which was a 30 hour week possession. But the reason that they did not consider this carve-out sanitising role (and this would have applied to reduced hours also) that could not fit in with the way cleaning in the school was managed and that could not be changed because accountability of cleaning staff for their areas was needed more, not less, post Covid.

It’s wasn’t practical or feasible to create a carved out roll of little jobs in each room and ask other staff to soak up her heavy duties. It was difficult enough for the staff to manage their own areas as it was.

He accepted that he didn’t discuss the complainant’s needs with the other staff to see if they would cooperate with it. This was for two reasons. He would not have disclosed her disability to them and, following the assessment, it was clear to him without asking them that they could not be asked to take on on her heavier duties. There was not enough time in the day to allow them to do that.

When asked if the Medmark doctor’s offer to consider roles after completion of the risk assessment, he said that was not within his remit. He was just asked to help with conducting a risk assessment applying criteria contained in the Medmark report and that’s what he did.

Evidence of Witness ended.

Evidence of the Respondent ended

Having considered the evidence both oral and documentary and the submissions of law and I find as follows:

CA-00042903-001 – This complaint is that in 2015 on the commencement of her new contract the Complainant did not receive a statement in writing of her terms of employment, when she changed from working for the Respondent as a canteen assistant/cleaner to working as a school cleaner.

In terms of the Respondent’s defence that this complaint is statute barred I am not satisfied that this is so. I apply the WRC Adjudication decision of Denise Ryan Smart School Accounting Ltd t/a Smart School Accounting (Adj 30153) which held that where an employee has not received a written contract in respect of a job that she has been appointed to,  that the contravention of section 3 of the Terms of Employment (Information ) Act 1994 remains a subsisting and continuing event from one month after the commencement of the employment for as long as the employment relationship lasts.

I am satisfied that a breach occurred. I do not accept the Respondent’s argument that her 2010 contract applied to the job that she held from 2015 onwards. I cannot see how this argument could succeed, given that the 2015 role was a different job and was not in the minds of the parties when the 2010 contract was signed.  The school cleaning job was materially different from the previous position. Her duties and hours differed. Given that no contract issued in 2015 and did not issue during the course of her employment I find that a breach continued until her employment came to an end. The issue then arises when did her employment come to an end. As the parties will see later in this decision I find that the letter of 10 September 2020 was not a dismissal. However I accept that from a date between September 2020 and the issue of this complaint in March 2021 that her employment came to an end. When that event occurred is not material for this complaint, what is relevant is whether the complaint is out of time. Given that her employment ended between September 2020 and March 2021 (when this WRC complaint issued) I find therefore that the breach continued until that time and that this complaint is within time.

I find this complaint to be well founded

 CA-00042903-002 – This complaint is that the Complainant’s contract  - had it issued to her when her new role commenced in 2015  - should have reflected the work that had been performed by her predecessor. A complaint of this nature is not one that is properly brought under the Terms of Employment Information Act 1994. Insofar as her 2010 contract failed to reflect correctly the work that she was required to so, I find that this is already encompassed within complaint CA-00042903-001 which I have already decided.

For this reason I find this complaint is not well founded.

CA-00042903-003 (UD) – This complaint is that the Respondent’s treatment of her in September 2020 amounted to a constructive dismissal because of a heavy workload which was not responded to, she was injured at work, she was forced go on sick leave and by letter dated 10 September 2020 the Respondent refused to accommodate her in line with their own Occupational Health advice and she was told that she could either go on unpaid sick leave or retire.

2015-2018

The first thing to say is that the Complainant does not contend that she was dismissed until September 2020 so in terms of the heaviness of her workload from 2015- 2018, this is only relied on by the Complainant as the background as to why she became unfit for work and how unreasonable it was of the Respondent not to accommodate her.

However in respect of her assertion that nothing was done by the Respondent to ameliorate her heavy workload prior to November 2018 when she went on sick leave,  the Complainant herself accepted under cross examination that changes were undertaken in 2016-17 by the principal and assistant principal to lighten and redistribute her work duties following her raising this as an issue. The Complainant further accepts that at a meeting arranged between the assistant school principal and the cleaning staff, the staff were asked if they were happy with the new work distribution arrangements, and the Complainant accepted that she, along with the other cleaners accepted the new plan. She said under cross examination that the reason that she did not object was because she did not wish to do so in front of the other cleaners because she in effect would be asking them to take on more of her work-load. So, while she first claimed that that no response to her complaints were made by school management, her evidence under cross examination became that the school principal did respond in 2016-17 but that her workload still remained too heavy.

10 September 2020

The Complainant’s case is that following an extended sick leave during which she received sick pay and thereafter Temporary Rehabilitation Remuneration (TRR)  that she was dismissed when the Occupational Health Assessor advice was not followed by the school and she was told by letter dated 10 September 2020 to either go on unpaid sick leave or take early retirement, which in essence was a dismissal.

I do not accept that the letter of 10 September 2020 was a dismissal. That letter needs to be considered in the context for what led up to that point. The Complainant was on sick leave from November 2018. Her paid leave was due to end in September 2020. This meant that in September 2020 unless she returned to work given that her entitlement to paid sick leave and TRR were then exhausted, she could no longer continue to be paid. The Respondent’s sick pay policy (full pay for three months, half pay for three months plus TRR) is a well-established sick pay policy that attaches not only to staff in schools but many other publicly funded employment contracts.  There is no suggestion that the Complainant was not aware of the sick pay policy or how it operated. She had benefited from it since November 2018.

There is nothing in the 10 September 2020 letter to state that her employment had ended. Indeed the offer of unpaid sick leave is precisely the opposite of that, an offer that her employment would continue, until she either became fit for work or the unpaid sick leave phase of her work absence had also was exhausted. I do not accept that this letter was a dismissal letter and confirmation of the fact that she would not receive any further sick pay, given that was not within the gift of the Respondent to offer her, were not grounds for her to consider that she was dismissed.

The situation might well have led to a dismissal the following February 2021 if her incapacity had continued, when all her entitlement to sick leave would then have come to an end, but no dismissal occurred in September 2020 and it was premature of the Complainant to consider that it had.

Obligation to seek clarification

If the Complainant thought that the letter was a dismissal I find that this simply is not what the letter stated. I accept that she was upset by the outcome but it is not reasonable for the Complainant to have assumed that this was a letter of dismissal.  If alternatively she thought the letter made her employment status unclear, she was obliged then to contact the Respondent and seek that clarification before assuming that she was dismissed. The authorities on constructive dismissal have consistently held that if a representation by an employer is ambiguous as to whether or not it is a dismissal, the employee is required to contact her employer to clarify what the representation means.

Sending in sick certificates for whatever reason at the very least suggests that the Complainant was unsure as to her employment status and if she was unsure, she should have sought clarification from her employer before assuming herself to have been dismissed.  

I find that the Complainant was not dismissed either expressly or constructively on 10 September 2020 and I find this complaint to be not well founded.

The Complainant’s evidence in respect of September 2020 leans more into her assertion that the Respondent acted unreasonably in not following the advice of the Occupational Health Assessor, which leads more into into her discrimination complaint that there was a failure to make reasonable accommodation for her disability, to which I now turn.

CA-00042903-004: Failure to make reasonable accommodation for the Complainant’s disability

The Respondent accepts for the purposes of the EEA that the Complainant has a disability.

The Complainant attended an Occupational Health appointment in August 2020 to be medically assessed to determine her capacity to return to work. From November 2018 until August 2020 the Complainant had been continuously certified as unfit to work, so while there were background issues, no obligation to make reasonable accommodation arose prior to August 2020.

The Medmark findings in August 2020 were that “Ms. Walsh remains unfit for her usual role but could be considered for an alternative semi-sedentary role with restricted manual handling duties (less than 5kg) and restriction of tasks which require frequent stooping/bending, if this can be reasonably and practically accommodated. In the view of the nature of Ms. Walsh’s condition it is probable that restricted duties will be required in the long term.”

The first matter to address is what the Medmark report stated.  It was clear that a return to the role of cleaner that the Complainant had performed prior to November 2018 was ruled out by Dr. Colleavey. The recommendation was couched in terms that if it were practical and reasonable for to accommodate,  that the Complainant be permitted to work a semi-sedentary role with restricted heavy lifting and restricted bending and stooping.

So the issue was is having been charged by HR with the task of determining if there were feasible options available to offer the Complainant  - taking account of Dr. Colleavey’s (3 Medmark) recommendations -  did the Respondent fail to make reasonable accommodation for the Complainant’s disability?

I accept that school principal and assistant school principal applied themselves to the task of assessing whether the accommodation could be made.

I am satisfied that the assessment that was conducted was reasonable in that all the functions of the cleaning role were individually identified and the 3 Medmark criteria were applied against each one in excel spread sheets.

No issue has been made by the Complainant that the job functions were wrongly described in the assessment process or the results were incorrect or biased in favour of a particular outcome.

I was impressed with the thoroughness of the assessment process undertaken by the principal and assistant principal particularly given the Covid pressures that existed at that time just as the school was about to reopen, albeit that some of this work (preparation of a detailed whole school cleaning management plan) had already been done for the school reopening.

I accept that the assessment process was conducted objectively and fairly.

The Complainant did not state during the Adjudication hearing what form of reasonable accommodation she wanted other than an application of the Medmark 3 criteria. She complains that she was never asked. I think it is regrettable both that that the Respondent did not discuss the assessment process or outcome with the Complainant (although the Supreme Court in Daly v Nano Nagle [2018] CA IECA 11  found that this is not fatal to an assessment.) I also find it regrettable that knowing that this assessment was being conducted (the Complainant was advised by HR that this was happening on 4 September) that the Complainant did not seek to participate.

At the adjudication hearing while it was asserted that the assessment without the Complainant’s input was not adequate, no suggestion was made that the Medmark findings should have not been applied or only applied in a diluted way. I accept that a request was made by the Complainant’s solicitor by letter dated 2 December 2020 to accommodate her was not replied to and it should have been, but again that letter suggested that the Medmark recommendation be accommodated. Given the totality of the evidence and the recommendation that she would not be fit to do work other than those that fitted the Medmark 3 criteria, I do not consider it unreasonable for the Respondent to have applied these 3 criteria to assess whether she could return to work.

It is the Complainant’s case that given the history or injury that was caused by the Respondent’s heavy workload, the Respondent should have remedied this by allowing her do restricted duties as Medmark had recommended. However was that request one that was reasonable to expect the Respondent to comply with or was the cost of complying disproportionate?

The Complainant asserts that that the Medmark recommendations should have been accommodated and the failure to do so was a breach of section 16 (3) (a) of the EEA (failure to make reasonable accommodation.)

I do not accept that the school were obliged to provide the Complainant with a cleaning job with restricted duties. The Occupational Health recommendation was subject to the proviso of it being practical and reasonable to do so. But apart from that mainly I am satisfied that (a) it was not possible for the school to redistribute all the Complainant’s heavy duties to her colleagues, which is the only way that the accommodation could have been made and (b) particularly at that time (September 2020) when it would not have been safe for staff and students to do this.

In terms of the second suggestion that which arose at a unique time, in September 2020, of creating a carve out Covid cleaning role because of the additional funding for 25 hours of Covid cleaning.  I find that while at first blush this might look like a reasonable possibility, but when the detail of that is properly considered, the burden on the school (not only in terms of cost but also safety) would have been disproportionately heavy on the Respondent.

The reasons for this are as follows:

I accept that the Respondent particularly in September 2020, needed to maintain a whole school cleaning management system within which individual cleaners were held accountable for their own designated area and which the assistant principal could monitor in an efficient manner.

I am satisfied that a breakdown of this system whereby one cleaner did specific light duties both within her area and her colleagues designated areas and they correspondingly did heavy duties in hers, would have been non-conducive to the maintenance of accountability within each area.

I am also satisfied that it would not have been an efficient use of limited resources to require that the Complainant do certain Covid sanitising cleaning but not others (wiping taps but not wiping down walls; wiping door handles but not door surfaces, wiping bathroom taps but not cleaning toilets.)

The only way that the recommendations could have been complied with was a complete reordering of the entire cleaning management system, which was not only not possible in September 2020 , it would not have been safe either.

I am also satisfied that it would have been too burdensome for the other cleaning staff to take on the heavier roles that the Complainant was unable to do.

I am satisfied that no additional funding was available given that the cleaning budget was calculated on the basis of student numbers and additional Covid funding had already been provided. I accept that additional funding was not sought but the evidence of principal in terms of how a cleaning budget is allocated was not countered.

I think that it is regrettable that the Respondent did not contact the Complainant to discuss the decision before it was made. But I am also satisfied that nothing turned on that.  Given that the Complainant wanted restricted duties in accordance with the Medmark criteria and given that the Respondent assessed the possibility of this and found that it could not be accommodated, I am not convinced that contacting the Complainant would have made any difference. Particularly given her position up to and including the letter from her solicitor of 2 December 2020 was that she wanted her needs to be accommodated according to the Medmark report. 

I find it regrettable that no consideration was given by either party to the possibility that she do a reduced hours cleaning job (like the job share workers that replaced her.) It is worth stating that the Supreme Court judgment in Daly v Nano Nagle [2018] CA IECA 11 requires that creative thinking is required when reasonable accommodation is being considered and just because the Medmark report did not suggest reduced hours with lighter duties was not a good reason for this not to be considered. However in this case, doing lighter or restricted duties still would have required other cleaners to shoulder the remaining heavier duties it would have required that the designated cleaning areas be mixed up. For this reason that I do not find that the Respondent’s failure to consider reduced hours was a failure to make reasonable accommodation because it still would have meant the Complainant doing light work only, which was for reasons already stated, too burdensome to reorganise and unsafe.

Ultimately the central issue in this case is – whether the assessment process was fair and whether the Respondent’s finding that, the majority of the cleaning role tasks that she had been hired to do, would need to be stripped away if the Medmark recommendations were to be adhered to, reasonable. And if these two things are correct, then it was not unreasonable for the Respondent not to give effect to the Medmark recommendations

I am satisfied for reasons outlined above that because of her disability the Complainant was unable to so most of the tasks that were required for the job of cleaner and even if a carve out Covid sanitising role had been considered by the Respondent, I am satisfied that this too would have required a redistribution of duties too radical for the School to incorporate because it would have led to a nonaccountable cleaning system at a time when such accountability was essential to safety in the school and which was not possible given the workload that the other cleaners were already had. I find that the cost to the staff and students - in terms of safety and over work - would have been disproportionate to the Complainant’s gain.

I find this complaint to be not well founded.

CA-00042903-001

I find this complaint to be well founded. I award the Complainant € 1,990

CA-00042903-002

I find this complaint to be not well founded

CA-00042903-003

I find this complaint to be not well founded

CA-00042903-004

I find this complaint to be not well founded