Complainant

Respondent

Parties

Frank  Greaney

Health Service Executive

Complainant

Respondent

Anonymised Parties

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Representatives

  SIPTU

 Byrne Wallace

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043370-001

01/04/2021

The complainant submitted that he was discriminated against by the respondent on the grounds of disability by failing to make reasonable accommodation and the respondent denies the complaint.

It was submitted that the respondent had discriminated against the complainant on the basis of his disability by failing to make reasonable accommodation when the complainant was suffering with atrial fibrillation (irregular heartbeat) and which it was submitted is a condition which represents malfunction of the heart.

As a paramedic the complainant is required to respond to emergency medical calls and regularly drive.  On 07/06/2020 the complainant became unwell and was transported by emergency helicopter to hospital where he was diagnosed as suffering with atrial fibrillation and was advised he would be fit to return to work on 15/6/2020.  When the complainant contacted the respondent regarding returning on 15/06/20 he was advised by his line manager Mr A that he could not return to work until Occupational Health (OH) had reviewed him and the appointment took place on 25/06/2020.  OH deemed the complainant unfit for work and when he was seen again by OH on 16/07/2020 he was deemed to be again unfit to return to work. 

A review of 06/08/2020 determined the complainant could return to work on modified duties and was, therefore, deemed fit to return to duties but not deemed fit to return driving.  The complainant raised this with his line manager Mr A who advised the complainant that he could raise it as a grievance.  On 18/08/2020 the complainant’s union advised the respondent that the complainant was seeking reasonable accommodation and wished to return to duties in a non-driving role.  It was submitted by the complainant that another employee had been facilitated with non-driving duties.  The union requested a meeting but due to annual leave they were unable to accept dates offered. The complainant returned to work on 07/10/2020 and on 15/10/2020 the union requested a grievance meeting setting out that the complainant was discriminated against as a result of his disability.   The complainant utilised all 3 stages of the grievance procedure without resolution.

It was submitted that the complainant had a disability and was seeking reasonable accommodation and that the respondent failed to facilitate the complainant with duties that excluded driving.  The respondent was on notice of the disability and was on notice that the complainant was seeking reasonable accommodation.  The complainant suffered financially as a result of the failures of the respondent to provide him with reasonable accommodation and in September 2020 he was reduced to half pay while on sick leave.  No review was offered to the complainant.

Case law cited included Adj24740 and LC EDA1629

The complainant gave evidence that he went into atrial fibrillation on 7/06/2020 June and was discharged on the following day and had no interaction with the respondent while in hospital.  On 09/06/2020 the complainant was referred to OH and the complainant had not made a formal disclosure regarding his medical condition so was surprised to get this referral.  The OH specialist said that the ambulance crew had talked about it and the complainant submitted that this was breach of GDPR and that the complainant had only one sick day in the whole year and therefore he should not have been referred to OH.  The complainant said he was advised by the doctor in the hospital that he was fit to return to work.  The OH specialist said on three occasions that he was unfit for work.  On 14/8/2020 the complainant was advised that he could be offered work but that it would involve driving and the respondent said that driving was an essential part of the job.  The complainant said that there was other non-driving work at the covid centre that he could have done but was not offered it.  The complainant said that between September and his return to work he was not offered any work by the respondent and that another employee who was offered filing and admin work by way of reasonable accommodation.

Under cross examination the complainant said that the doctor at the hospital said that the complainant was fit to return to work but that OH said he was not fit for work and later said that the  complainant was fit for all duties bar driving and the complainant agreed that driving is a core function and that workers can alternate with driving where one person would drive and one would treat the patient.  The complainant said that it is an 8-person station and that sometimes he might drive with an Advance Paramedic and other times he might not.  The complainant said that he accepted that there is a challenge if he cannot drive and if the patient requires the expertise of an Advanced Paramedic.  The complainant said that he was restricted from driving a national ambulance vehicle and that he was not restricted from driving a car.  The complainant said that the respondent did not contact him directly but contacted his union and accepted that the respondent communicates with the union and that he was fully in the loop.  He said that the respondent could have contacted him directly after 19 years service.  He believed his employer did not look after him, kept him out of work, cut his wages in half and he had to clear loans.  He said he did not fill out the relevant form regarding pay as he did not want further breaches of his GDPR.  He confirmed that he was on full pay 06/09/2020 and then half pay in the remainder of September until October and then was offered retrospective critical illness.

It was submitted that the Complainant is a Paramedic and alleges he was discriminated against on the grounds of disability whilst on sick leave from 08/06/20 to 06/10/2020 when the Complainant returned to work. The respondent denies the complaint.  The Complainant was deemed fit to return to work as a Paramedic on modified duties (without driving) from 12/08/2020 and returned to work as a Paramedic carrying out full duties on the 07/10/2020.  The period relating to the temporary disability in this case is 12/08/20 to 6/10/2020. The grievance procedure was invoked in November 2020, lodged by SIPTU on behalf of the Complainant.

The complainant commenced sick leave on the 8/06/2020 and was assessed by OH on 25/06/2020. The recommendations received by the line manager from OH included that the complainant was not currently fit to carry out the duties outlined in the job description, that no permanent adjustments to work tasks or environment were recommended and health problems were unlikely to recur or affect future attendance and the complainant would be able to offer regular and effective service once the condition was treated.  A second OH review was carried out on 16/07/2020 and this deemed the Complainant unfit for work to be reviewed again in 3 weeks. A third assessment by OH took place 06/08/2020 where he was deemed fit to return to work bar driving. OH stated they were awaiting a letter from the Complainant’s Specialist to confirm fitness to drive.

The Complainant remained on sick leave in receipt of full pay.  Communication was received via email on the 18/08/2020 from the Complainant Union Representative and this inferred a discussion had taken place with the Complainant and his Union Representative and was now seeking a meeting in respect of the Employment Equality Acts.  It was stated in this email that the Complainant was suffering from a cardiac condition, which met the definition of a disability as set out in the Equality Act. The respondent was informed that it was being put on notice that the Complainant should return to work in a non-driving role and a meeting was sought to discuss and on 19/08/2020 the line manager responded to the email and stated that he would look into this in more detail. This was the first time the line manager became aware of the intentions of the Complainant and his Union Representative.

The Complainant continued on sick leave in receipt of full pay. On 24/08/2020 the line manger suggested two meeting dates, 25/08/2020 or 28/08/2020 at 10am and the Union Representative confirmed by return that he was on leave and sought dates from the line manager for week beginning 07/09/2020.  The line manger replied suggesting 08/09/2020, when the Union Representative would return from leave and no further correspondence was received from the Union Representative and the Complainant was assessed by Occupational Health on 5/10/2020 and deemed fit to return to work and resumed full duties from7/10/2020 without issue and undertook numerous overtime shifts upon his return to full duty.

On 15/10/2020 the union representative advised by email that the complainant was lodging a grievance on behalf of the Complainant, citing the nature of the grievance to be failures by the respondent to provide reasonable accommodation for an existing disability as required under the Act.

Upon receipt of this email correspondence, the line manager replied, stating that a number of meeting dates were suggested as far back as the 25/08/2020 without a response and the line manager confirmed that the Complainant was now back to work and that he would arrange a grievance hearing date. The complainant’s first grievance stage 1 meeting was held on 02/11/2020 and the outcome of this grievance was issued on 09/11/2020 and did not uphold the grievance.  A further stage 2 & Stage 3 grievance was heard and were not upheld and further emphasis was placed on the suggestion by the Complainant that he could have worked as the clinical lead paramedic on emergency calls whilst placing additional burden upon his crew member who would have to drive for 12 hour shifts, approximately 36 – 48 hours per week. Neither grievances were upheld.

The Complainant and his Union Representative failed to engage with the line manager in securing a meeting date that would have allowed the organisation to provide reasonable accommodation for the duration of the temporary disability. The temporary disability was from 12/08/2020 till 06/10/2020 and during this time there were three different dates put forward by the line manager of 24/08/2020, 25/08/2020 and 08/09/2020 none of which were suitable to the Union Representative and no alternative advocate was suggested to take over this case on behalf of the Complainant given his awareness that he was going on leave and that the Complainant was seeking the meeting to discuss reasonable accommodation.  It was submitted that for similar previous situations a temporary advocate might have been appointed to progress the matter. In this case, the Union Representative failed to respond to proposed dates.  It was not until 15/10/2020 that a response was received which commenced a grievance process on behalf of the Complainant.

It was submitted that that this claim is without cause, due to the fact that a process to assess and discuss the disability with the Complainant with regard to reasonable accommodation, did not occur due to delay and avoidance by the Complainant and his Union Representative. The respondent was not opposed to seeking a resolution to this temporary disability and in fact, if had been allowed to engage with the parties, could have found alternative arrangements for the Complainant. An assessment to determine roles and duties suitable for the Complainant was not carried out due to lack of engagement by the Complainant and Union Representative.

The subsequent arguments raised by the Complainant and the Union Representative at the various grievance hearings suggested that in their view, the Complainant should have been allowed to return to work in his substantive position as a Paramedic, except for driving. This was addressed in the letter of 1st March 2021 – Stage 3 Grievance that took into consideration the impact that this request would have on the crewmember of the Complainant who is an Advanced Paramedic and whom would have had to agree with driving an Ambulance on an ongoing basis and not treating patients. The respondent also submitted that they are regulated by the Pre-Hospital Emergency Care Council (PHECC) who set the standards for education and training for pre-hospital emergency care in Ireland. The Paramedic can provide intermediate life support whereas the Advanced Paramedic can provide advanced life support which includes the skills listed for a Paramedic plus other more advanced skills and the medications permitted for a Paramedic and 23 additional medications for acute emergency medical and traumatic conditions.  The Crewmember of the Complainant is an Advanced Paramedic (AP) and the clinical lead on all calls and illustrates the considerable difference in administration of medication and interventions at this level in comparison to a Paramedic (P). Another important note is when an AP administers medication, they must remain with the patient to continue clinical assessment until they arrive at the Emergency Department. If the Complainant was to treat patients on an ongoing basis and not drive, patients who require a more complex level of treatment normally provided by an AP, would be subjected to a lesser degree of care due to the AP continuously driving.

The respondent also submitted that they take into consideration the Health, Safety and Welfare of the AP, who crews with the Complainant. Aside from the issues raised concerning the differences in clinical qualification and duty to the patient in providing the most suitable emergency care it is not acceptable to expect a senior clinician to work as a full-time driver for which there is no role. Furthermore, the respondent does not have specific roles or job specification solely as drivers. Moving a third Advanced Paramedic or Paramedic to work with the existing crew would result in the service reducing operational cover in the area and negatively affecting others to facilitate the Complainant in non-driving duties.

Case law cited included Nano Nagle v Daly and the respondent submitted that Adj24740 which the complainant submission had referred to, had been over turned by the Labour Court.

The evidence of Mr Brennan was that he is an advanced paramedic and became aware of the complainant’s absence and that on 18/8/20 he took the case over as it appeared more complex.  He said he did not know that the complainant could drive to work and that it was complex when you are not allowed to drive as part of your duties.  He confirmed that he was available to meet on 08/09/20 and heard the first stage of the grievance and did not hear any further part of the grievance.  He said that a swabbing role for the complainant was not mentioned in 2020 and it may have been explored further on but it may have required driving. It was his evidence that the review of reasonable accommodation required a meeting to consult.  His evidence was this was his first time going through this.

The complainant submits that he was discriminated against by the respondent on the grounds of his disability and by the failure of the respondent to make reasonable accommodation when the complainant experienced atrial fibrillation (irregular heartbeat).  It was submitted that the most recent date of discrimination was 06/10/2020 and his complaint was received by the WRC on 01/04/2021.  The respondent did not dispute that the complainant had a disability at the material time but disputes that the complainant was discriminated against with reasonable accommodation. 

Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, as follows:

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

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 6(2)(g) provides that

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

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

Section 85A (1) of the Act states:

“85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent.

In EDA082 McCarthy v Cork City Council the Labour Court set out that initially the complainant is seeking to establish a prima facie case. Hence, it is not necessary to establish that discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

TheLabour Court found in Melbury Developments v Arturs Valpeters 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 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". It added that "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”.

I note that upon discharge from hospital the complainant was deemed fit to return to work on 15/6/2020 with apparently no restrictions.  The respondent was thereafter referred to OH by the respondent, on three occasions.  In evidence the complainant while upset that he was referred to OH, did not appear to dispute the decision of OH when they deemed him unfit for work.  I note also that the complainant did not dispute the evidence of the respondent that they offered three dates to the complainant, through his union to discuss reasonable accommodation at the complainant’s request when he was deemed fit to return to work but not fit to drive.  In EDA 2227 Marie O’Shea v HSE theCourt noted that

“The Respondent was entirely justified, in the Court’s judgment, in relying on the Occupational Health reports it received on a regular basis in relation to the Complainant and her level of ability to perform, or not, a range of essential duties inherent to her role”.

While it was unfortunate that the representative was not available for the first 2 dates offered and did not respond regarding the 3rd date; it is difficult to see how this be regarded as the fault of the respondent.  I note also that the complainant did not dispute that the union representative was authorised to act on the complainant’s behalf and had been “kept in the loop”.  While I note that it may have been possible to allow the complainant to return to work in a non-driving role; this it would appear to me, could only have happened with some form of consultation with the complainant regarding the suitability of any such role.  The respondent made efforts to consult with the complainant but due to no fault of the respondent, this did not happen.

In all the circumstances I find that the complainant has failed to establish a prima facia case of discrimination and I find that the complainant was not discriminated against and I dismiss the complaint.

In all the circumstances I find that the complainant has failed to establish a prima facia case of discrimination and I find that the complainant was not discriminated against and I dismiss the complaint.

Discrimination, equality, reasonable accommodation