Complainant

Respondent

Parties

Vanessa Rodrigues Linhan

Carechoice

Representatives

Alaister Purdy & Co Solicitors

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-00055195-001

20/02/2023

The Complainant worked for the Respondent nursing home over a period of roughly 5 months. She was a Health Care Assistant (“carer”) working a nightshift.

In February 2023 while still an employee of the Respondent the Complainant submitted a complaint to the Workplace Relations Commission under the Employment Equality Acts (“EEA”).

This complaint relates to three separate incidents involving two separate residents which are referred to as Patient A and Patient B for the purposes of this decision. In the complaint form narrative, the Complainant alleged that she had been racially harassed and sexually harassed. While the box for harassment on grounds other than gender was not ticked on the complaint form I am satisfied that a racial harassment complaint was before me by virtue of the narrative. The Respondent representative raised no objection when I put this to her.

There are other issues raised by the Complainant during these proceedings which were not within the scope of the EEA. These are omitted entirely from this decision.

The Complainant attended the hearing and gave evidence.

The Respondent’s Director of Nursing (“DON”) and Assistant Director of Nursing (“ADON”) also attended and gave evidence.

This decision is partly anonymised. The Respondent’s name also refers to the specific nursing home the Complainant worked at.  At the conclusion of the hearing the Respondent expressed a concern that patients referred to in this decision could be identified by family members.

The Complainant did not seek to be anonymised. In the circumstances I believe the best course of action was to partially anonymise the Respondent’s name to remove the reference to the specific care home.  I have also anonymised the names of the DON and ADON to address the same concern.

The Complainant gave evidence under affirmation.

She first outlined the incident with Patient A. This was an aggressive patient who would often leave the home and return drunk. This behaviour was a serious issue for the night shift as they are required to check that he had returned by 11pm. They didn’t want to knock on his door in case he was there and would become abusive.

On one occasion the carers found bottles of alcohol in his room. He would store these in his locker. The carers were managed by the nurses, and they knew about the situation with Patient A. They had reported it and discussed it. They were told to try and avoid him.

On 20th of December 2022 Patient A had been in the pub. He became angry and abusive that night. He came out of his room in his underwear and went straight to the nurse’s station where the Complainant was.  

He was aggressive towards her and started to say very racist things. In the hearing the Complainant was quite upset recounting this and the Respondent representative agreed that it was not necessary for the Complainant to repeat the exact words used by Patient A.

Patient A went to the nurses’ station and took a Christmas decoration and pushed it into the Complainant’s chest. She was terrified. He went to his bedroom and came back before eventually staying in his room. As this was the night shift there were not many staff available and the Complainant felt vulnerable.

The Complainant felt the staffing levels at night were not safe. There were three health care assistants and two nurses for 46 patients. The Complainant’s experience was that the nurses would not assist the carers and would remain in the station as such the carers would usually be alone when working with the residents.

After this incident the Complainant emailed Human Resources (“HR”).

Around 3 or 4 days after the incident there was another incident where the Complainant encountered Patient A in the kitchen.  He began shouting racial abuse at her again and called her a stupid black woman and told her to go back to her country. 

The incident involving Patient B happened after these incidents with Patient A. The Complainant could not specify exactly when. There were well known issues with Patient B. He would touch himself in public. He would try to touch residents. The nurses were aware, but it wasn’t in his care plan at this time.

One night when the Complainant was helping a resident in their room when Patient B came in.  He was touching himself and was trying to get her to go into his room. She asked him to leave and he kept coming towards her. He was much larger than the Complainant and ended up cornering her in the room while touching himself. She had nowhere to go and no one was around to help her.

She had to pick up a can of deodorant and only then did he retreat. This incident left her really shaken and she reported it to the nurse on duty. She was told to report it and was given a piece of paper to write out what happened. Which she did and returned her statement to the nurse’s station.

The view from the nurses was that Patient B has dementia and he is like that and these kind of things can happen.

The Complainant suggested it should the risks involved with Patient B should have been in his care plan that he needs to be put in a male only ward. After this incident she still had to do his morning care, change his sheets and assist in showering him.

The Complainant was cross examined.  

She had worked in other homes before this one.

She had received training upon starting but it didn’t cover these scenarios.

After she emailed HR about Patient A they replied letting her know they would address these issues.

The Complainant emailed HR on the 6th of March after she had submitted these complaints under the EEA and resigned. The Complainant disputes that this was the first time she raised the issue regarding Patient B and sexual harassment. She had complained to nurses station a number of times. She didn’t have a email terminal as a carer. She wrote down a complaint on the day the incident with Patient B happened. But there was no response.  

The Patient B incident was not referred to in her email of 22nd of December because it happened after that. She believes in the week between Christmas and New Year.

She accepts she did not go to HR.  But she did go straight to the nurse in charge.

While the DON did meet with her after she resigned, she felt it was too late and it was not a serious meeting. She felt the DON wasn’t there to listen to her and took the view that abusive situations happen and that’s it.  They asked her for solutions rather than propose their own.

She accepts that she was sent the company handbook but believes she complied with it by reporting the issue to the nurse in charge.

The Respondent made detailed written submissions and provided oral evidence.

Assistant Director of Nursing (“ADON”) gave evidence. She deals with maintaining safety and serves as a point of contact for staff. Particularly new staff who get an induction and week of training.

She is unaware of the paper report the Complainant says she submitted to the nurses station after the Patient B incident.

The Respondent always deal with complaints when they come in. When she got the Complainant’s email from HR on the 22nd of December they worked to address the Patient A issues. Both she and the DON met with him. He’s allowed to go in and out of the home as he pleases. It’s his right to do so.

He is much better now and doesn’t stay out late anymore.  

She is not aware of complaints regarding Patient B.  

She had received no complaints regarding staffing levels. She strongly disagrees with the suggestion that nurses didn’t help out carers as staff are supposed to work as a team.

The ADON was cross examined.

ADONs don’t oversee nights which are supervised by the senior nurses. She was not on in any of these shifts where these incidents happened.

She knew about the situations with Patient A and that he was speaking sexually to residents and staff. They preferred to have male staff dealing with him and normally that floor has a male staff member.

It was put to the ADON that as they are aware of the issues with Patient B then why ask women staff to give him showers? Her reply was that some can and some can’t.  If a staff member said no then they would not be required to.

The ADON says these issues should be communicated about in daily huddles and handover.

The Director of Nursing (“DON”) gave evidence under affirmation.

As DON he oversees the whole building.

When he received the Complainant’s email on the 22nd of December about Patient A he put a plan in place. He met with patient A and told him his actions were not appropriate. He is entitled to go out and have a drink and remains part of the community. He was apologetic when told about that the Complainant was intimidated by him.

After that no other complaints came to him. He addressed what he was notified of in the best possible manner.

Following the 6th of March he sought to meeting with the Complainant. He met with her and HR. At the time she didn’t want to come into the building, so they met on Teams.  He wasn’t blaming her and was trying to explore the issues.  He did go through background and training. There was no suggestion that what happened was okay but he did point out the environment they operated in.

He didn’t want her to resign.

He tries to be visible and will walk the floor often. He sometimes drops in on the night shift.  He allows residents and staff to give any feedback.

He doesn’t remember coming across the Complainant.

He did seriously consider the issues raised. He would never ignore a complaint from a staff member as these things are really serious.

He acknowledged that resident checks are built in to the epicCare system that the Respondent uses. It is a digital system that carers follow on  handheld tablet.

Harassment

Harassment and sexual harassment are prohibited under Section 14A of the EEA. Where harassment occurs, it constitutes discrimination in relation to the victim’s conditions of employment.

Harassment is conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Both sexual and racial harassment of the Complainant occurred. The Complainant provided undisputed and detailed oral evidence recounting these episodes.

She was racially harassed by Patient A on the 20th of December when he intimated and assaulted her while shouting racial abuse. Patient A racially harassed her again in a separate incident in the kitchen.

Patient B sexually harassed the Complainant in a more serious and frightening manner. He cornered her in a room while touching himself sexually. He was much larger than the Complainant and advanced towards her in this manner. This occurred late at night and there was no immediate assistance available to her.

There are certain circumstances in which the nature of a Complainant’s job role can alter what might be reasonably considered as harassment however this is not one of them. For instance, if the Complainant had seen a patient naked in the course of washing them or carrying out a room check that would likely not be considered sexual harassment. However, that position cannot be stretched to provide some sort of general immunity to healthcare providers because their staff are involved in the care of patients.

The fact that the Complainant is a healthcare worker in no way diminishes her rights under the EEA. 

For transparency the Respondent does not argue otherwise, they only submit that I should be mindful of the context of the working environment when deciding this matter. While in this case I do not think the working environment is particularly relevant to the question of whether harassment occurred I do think it is an important consideration when determining whether the Respondent is liable for that harassment.

Respondent Liability

Section 14A of the EEA provides that: If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim.

Having established that the harassment occurred it is for the Respondent to establish the above defence. That is that they took steps as are reasonably practicable to prevent Patients A and B from harassing the Complainant or other carers working the night shift.

The Respondent has an induction and training program. However, the Complainant’s evidence was that harassment by patients was not addressed as part of this. 

The Respondent has a Bullying and Harassment policy. However, this policy is generic and fails to consider the specific needs and risks involved with working in a healthcare setting. The policy  appears to be focused on potential harassment from colleagues rather than residents. The Respondent’s submissions acknowledge this and suggest potential risks from patients are mentioned in their care plans.

It is accepted that Patient A’s care plan referred to his aggressive behaviour. The Complainant believes that Patient B’s care plan did not refer to the potential risks involved with caring for him. The Respondent provided some of Patient B’s care plan records which do have entries from a year before the Complainant’s issues noting his sexual approaches to residents, nurses and carers and providing bullet points on how to manage interventions. It is not clear how visible these entries would have been to the Complainant a year later.

The DON and ADON provided evidence that they were aware of the risks associated with both Patients A and B. They outlined their response to the Complainant’s complaint regarding Patient A and that they met with him and worked to improve his behaviour. Aside from this their evidence was of little relevance. Neither the ADON or DON had ever met the Complainant while she was still an employee, and they did not work the night shift.  The Complainant worked on night shifts which were led by a senior staff nurse. The Complainant was the only person to provide evidence of her actual working conditions. For instance, the ADON is clear that nurses were supposed to actively support the carers and not remain at the nurse’s station through the night shift. This did not contradict the Complainant’s evidence that on the shifts she worked the nurses failed to support the carers, it just confirms that this was not how they were supposed to act. The Respondent also suggests that the Complainant did not report the issue regarding Patient B but the Complainant outlined in evidence that she notified the nurse at the time of the incident and at the request of that nurse provided a written statement immediately. The Respondent did not request an adjournment to produce any other witnesses who could have provided more relevant evidence.

The Complainant’s evidence regarding Patient A was that the supervising nurses were aware of his aggressive behaviour and drinking but that they did not take any sort of action to address it. Carers were still required to check on him and though at times it seems to have been permitted for them not to. The Respondent’s automated epicCare system continued to prompt them checking on Patient A during the night. After the Complainant’s complaint to management successful action appears to have been taken to address Patient A’s behaviour, however they have failed to establish that there were efforts in place to manage the risks he presented before the Complainant’s harassment. As such the Respondent has failed to establish a defence in this regard.

The Complainant’s evidence regarding Patient B is similar and, in many ways, supported by the ADON’s evidence. It was well known that Patient B behaved in a sexual manner towards patients and staff. There is reference to it in the care plan records but it the Complainant’s evidence was that was no process in place to ensure information and advice was cascading down to the carers on the night shift. These staff were obviously more vulnerable as there were a limited number working at night. The ADON outlined that female staff could simply refuse to wash Patient B but the Complainant clearly wasn’t aware that that option was open to her. The ADON’s evidence was that they would try to ensure male only staff cared for Patient B however she did not explain how the risk was managed or monitored when male staff were unavailable.  The Respondent has failed to establish that they took reasonably practicable steps to address the risks of Patient B towards the Complainant and other staff on the night shift.

Both the DON and ADON appeared to be considered and professional people. When they became aware of an issue they sought to address it. However, when countering harassment the most important tier of management will be the victim’s immediate supervisor who is on hand to actually react to incidents and risks. More senior staff offering support after the fact is no substitute for this.

Redress

As outlined above I am satisfied that the Complainant was harassed in contravention of the act on three separate occasions. On two occasions by Patient A and on one occasion by Patient B. The Respondent has failed to establish that they took reasonably practicable steps to avoid this and as such is liable.

Section 79 of the EEA now requires me to provide redress in accordance with section 82 of the EEA.

Section 82 subsection 1 of the EEA outlines the redress which may be ordered by a WRC Adjudicator including compensation for the effects of acts of discrimination. Section 82 goes on to provide the following maximum sums for compensation. 

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the

complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

With reference to the Complainant’s pay the maximum award open to me is approximately €56,000.

As I stated earlier in this decision, the fact that the Complainant is a healthcare worker in no way diminishes her rights under the EEA.  While the context of the workplace was important to determining whether the Respondent was liable for the harassment it does not diminish the seriousness or the effect of the harassment. The Complainant was subject serious racial and sexual harassment which made her legitimately fear for her safety. I am satisfied of her evidence that these actions had a huge impact on her and her relationship with her employer.

As the Complainant’s rights in this case derive from EU Directives, I am also mindful of my obligation to issue redress which is “effective, proportionate and dissuasive” as per Von Colson and Kamann v Land Nordrhein-Westfalen.

Having regard to all circumstances I am of the view that the Complainant should be paid compensation of €30,000.

I find that the complaint is well founded and direct the Respondent to pay the Complainant €30,000 in compensation.