Complainant

Respondent

Parties

Martina  Collins

HSE Saolta Group

Representatives

Myles Gilvarry Gilvarry & Associates

Paul Hume HR Saolta Group

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-00064105-001

14/06/2024

The Complainant is a nurse in Mayo University Hospital who commenced employment there on the 2nd of January 2012 and is employed as a General Nurse (Enhanced).

This is a complaint of discrimination by the employer under the protected ground of disability with particular regard to the application or otherwise of section 16 of the Employment Equality Act 1998,as amended, where it refers to the provision of a reasonable accommodation to a person with a disability for the purposes of the Act. It should be noted that a separate industrial relations dispute regarding payment under the injury at work scheme was resolved at the hearing in August 2024 following discussions with the undersigned. The second date of hearing was concerned with the complaint under the Employment Equality Act.

Related to the complaint of disability the complaint form stated:

“My employer continues to refuse to make a reasonable accommodation for my disability. I have been out of work since 19th November 2021 due to injuries suffered at work, as a result of which I cannot return to my previous post as staff nurse on ward A in Mayo University Hospital. My employer refuses to make reasonable accommodation for my disability, by assigning me to a lighter position, and has removed me from the injury at work scheme, as a result of which my sick pay entitlement has expired and I am suffering severe financial hardship. In a letter to occupational health on the 6th  November 2023 my ward manager refused to make reasonable accommodation, and this refusal continues up to date.”

The parties made oral and written  submissions on the matter of the accommodation. There was contact between the parties between the date of the first and second hearings but they were unable to reach an agreement on a return to work-in reality no discussion of substance occurred-an issue referenced again later on. At the second hearing The Respondent clarified that they dispute the fundamental basis of a complaint under the protected ground of disability. The rationale for that  position is that the occupational health reports did not define or definitively say that the medical issue in this case fell for consideration within the legislation as had occurred in other Occupational Health Reports. The consequence of this stance must mean that the Respondent is of the view that, effectively, they were not obliged to apply the terms of Section 16 the Act. It follows therefore in arriving at a decision in this case a conclusion is required on the fundamental issue of there being a disability for the purposes of the Act and then if it is concluded that such a disability exists then the matter of accommodation of that disability arises for consideration taking into account the positions expressed by the respective parties regarding such an accommodation. It was confirmed on behalf of the Complainant at the resumed hearing that she does indeed wish to return to work, and this is the remedy she seeks together with compensation by way of a deterrent against the employer due to their failure to provide a reasonable accommodation.

The Complainant worked in Mayo University Hospital without incident over the last number of years. She had some episodes of sick leave relating to work related stress but had never previously suffered a physical injury at work or had any injury which compromised her musculoskeletal system. The job of a registered general nurse can involve lifting and assisting patients to move and she was fit and able to continue this work until the date of the injury at work.

It was submitted that on the 9th and 10th of November 2021 the Complainant suffered an injury at work while “being obliged to assist a morbidly obese patient in sitting up in bed”. The appropriate equipment for assisting in lifting such a patient was not available for a bariatric bed. It was submitted that she suffered severe injury to her musculoskeletal system in assisting this patient during two separate night shifts. In addition, she was also assaulted twice by a different detox patient on the 9th and 11th of November 2021, resulting in her suffering injuries and she attended A&E after both assaults. As a result, she had to go on sick leave on the 19th of November 2021 and has been on sick leave ever since. The Complainant has been seen on numerous occasions by the Occupational Health Department of the HSE and has attended all appointments with an outside body Medmark. On all occasions they have been of the opinion that her injuries were such that she could not return to full duties as a registered general nurse in Mayo University Hospital Castlebar involving lifting patients and she would need to be put on lighter duties. This is also the opinion of her consultant orthopaedic surgeon. The medical reports have recommended a lighter position be made available to the Complainant which local management have refused to do.

In terms of an accommodation, it is a matter of record that the Complainant sought a position in palliative care for which she believes she is qualified. By way of another accommodation, it was submitted that if the Complainant was assisted by an HCA as a dedicated person available to her to assist her in any lifting or manual tasks associated with patient care this would resolve the issues identified in the medical reports. There are however concerns that with the number of patients (usually 35) and the related staffing level especially on night duty that the resources would not be available within the current complement to provide the support required. The employment of an additional HEA was proposed as a reasonable accommodation. Alternatively, there are other jobs in the Hospital where her area of expertise can be used. The position of the Respondent is that there was no vacancy, citing the recruitment embargo.

On the second day of hearing, the Complainant replied to the Respondent contention that the Complainant does not have a disability for the purposes of the legislation, rejecting the Respondent position. Each medical report had confirmed her difficulties in performing the full range of tasks in terms of any manual handling. The disability experienced by the Complainant was not a minor issue; it interfered with her ability to perform certain tasks and there was no prognosis that this disability would be resolved in the near future, and it was therefore projected to be a long-term condition and disability.

At the hearing, the Complainant side confirmed her desire to return to work and sought redress which would provide for her return and compensation to act as a deterrent to the Respondent in future.

The following is an extract from the submission of the Respondent to the hearing on the 21st of August 2024:

“Ms Collins is again seeking remedy from the WRC across a broad range of complaints. There is intent on behalf of the employer alleged by Ms Collins which does not exist. The insinuations are false. These insinuations serve only to malign the employer, Hospital employees and management. The employer would be entitled to take the view that it has gone above and beyond what is required of them in dealing with a barrage of issues. The employer does not confer different treatment of staff members. Ad hoc complaints across a broad range of areas/legislation are disruptive to services. The employer is required to ensure that all schemes are operated in line with legal obligation and financial regulation. The employer does not have discretion to set aside scheme requirements, to compensate where there is to be no loss or to restore benefit where entitlement to same has been exhausted… The Complainant is one of over 700 nurses employed in Mayo University Hospital and 1,700 directly employed staff. No other employee has lodged as many disputes against their employer. Since October 2022 there has been no additional complaint made by any Mayo University Hospital employee for adjudication. In May 2024, the Irish Nurses and Midwives Organisation commended Mayo University Hospital in its management of Long(sic) term absence and supports to nurses in receipt of schemes. The Complainant has been advised time and again that there is no vacancy for palliative care nursing that she can be offered.”

Respondent correspondence and notes in documentation provided to the hearing.

The occupational medical report of 11th September 2023 contains two handwritten notes beside the following extracts:

“Emotionally she cannot contemplate returning to work in a healthcare environment that poses a risk of personal injury to her or could cause her to experience a recurrence of the physical assaults experienced prior to her withdrawal from work.”

Handwritten note: “This is not a realistic option in my opinion”.

And: “I would consider her fit to work in a lighter role were such available to her and I’m happy to review any potential job description in that regard”.

Handwritten note: “Post is RN – these options are not realistic in my opinion”

16th January 2024, CNM 1 to the Complainant:

“I was advised by the Director of Nursing that there had been direct communication with the Hospital Manager and that you were keen to return to work and he asked that I make contact with you to discuss a phased and supported return to the ward. I am unable to advise on alternative nursing roles in the Hospital, my understanding is that you were assigned to A Ward and that is the position you will hold. As you will appreciate, I don’t have responsibility for nursing outside of A Ward and I am unable to advise on any alternatives to your current post.”

19th January 2024, Office of Director of HR, Saolta:

“I would like to highlight the recommendation from within the said OH report of the consideration of a return to work in a “lighter role” and I would ask that you discuss and explore this with the HR Department of Mayo University Hospital.”

7th February 2024, DON to Complainant:

“For clarity, your post is as a registered general nurse on A Ward and this is the post and clinical location that any reasonable accommodation will be considered for. There is a shared responsibility between you and your manager to enable this return to work and to incorporate any and all reasonable accommodations. I would encourage you to work with E to identify what can be done to enable you to return to your clinical role in a phased return.”

9th February 2024, E to the Complainant:

“As per my previous correspondence I am keen to engage with you in order to discuss how we can work together to establish an appropriate phased return to work to your position as staff nurse on A Ward.”

13th February 2024, DON to Complainant:

“1. There are no current vacancies in the palliative care team – any future role would be a CNS post and as it would be promotional from your current role – you would need to apply and be successful at interview. You are free to apply for any future advertised role.”

28th February 2024, DON to Complainant:

“I have review the HSE OH Assessment and the Medmark one and they are not indicating that you are currently not fit to return to unrestricted work. Once you have full HSE OH clearance that you are fit to return to work as a registered nurse without restrictions we can then progress arrangements for a phased return to work. I would ask that you continue to engage and work with the HSE OH team and once a fit to return to work assessment is in place, I will communicate with you directly to manage your return to work.”

11th March 2024, Respondent to Complainant’s solicitor:

“We maintain that no member of staff is required to lift patients and in line with HSE/health and safety policy, there is appropriate equipment available and in use for safe movement of patients across the care setting. As part of a planned, mutually agreed and potentially phased return to work; your client will be required to undertake current training in moving and handling and this is an ongoing and mandatory training requirement for all nursing and other patient care staff.”

And:

“The fact is that nursing duties will always have a potential element of movement of patients, as referenced, with the appropriate equipment and training. As employer, the Hospital is not in a position to expose Ms Collins, as employee, to further risk in this regard and will be guided by independent clinical opinion in this regard.”

“An assessment by way of job analysis has been completed in relation to potential nursing roles for Ms Collins as with other staff members by way of rehabilitation to full employment. There are no nursing posts currently identified within MUH where the potential requirement for movement of patients can be eliminated.”

And:

“Nurse management remain absolutely committed in their efforts to providing reasonable accommodation such as modifications to the role or alternative employment options where this is possible in the context of service delivery in an acute setting and subject to legislative and HSE policy provision. We note the most recent HSE occupational health assessment states that “Ms Collins remains unfit to return to work”. On the basis that Ms Collins is currently medically assessed as not fit to return to the workplace we would ask your client to continue to engage with and attend for HSE occupational health assessments until she has confirmation that she can fulfil her role. We are not in a position to engage further in terms of her return to work until we have occupational health assurance that Ms Collins may return to work.”

And:

“We also give our commitment to implementing any reasonable accommodation to facilitate Ms Collins as identified from the HSE Occupational Health Department to enable her to undertake her current post as a registered general nurse on a ward.”

The Respondent felt obliged to point to an accumulation of 661 calendar sick days in the period July 2015 to July 2020(the year prior to the commencement of the current absence which commenced in November 2021.’

At the resumed hearing the HSE representative indicated that they had sought a meeting with the Complainant to discuss options for an accommodation which may be available in the Hospital in circumstances where recently approval has been given to the Hospital to fill vacancies. However, the Complainant did make herself available to engage in such a discussion.

There are four medical wards in the hospital. The Complainant has previously indicated that she will not work in three of those wards. The OH  summary is that the  Complainant is ‘unfit to work in A Ward’[no definitive reasons provided] but could be considered in an alternative environment. As an acute hospital it is unclear what that ‘alternative environment is ‘were such available to her in keeping with her transferable skills, and this would need to be expanded on.’

Neither party made what might be termed a legal submissions as usually occurs in these cases. This is not a criticism, simply a statement of fact which relates I believe in part to the close connection between the original dispute for payment of injury benefit and the complaint of a failure to provide a reasonable accommodation, the arguments and exchanges around which also resembled an internal employer/employee dispute. In this analysis reference is made to the legislation and elements of judgments by authorities partly to justify the findings, but also to bring some of the foremost elements of precedent decisions and the relevant legislation to the attention of the parties. These will I expect, be well known to the Complainants legal representative as an established practitioner in employment law.

The first point for consideration is whether the Complainant has a disability for the purposes of Section 6 of the Act. This point arises from what I found to be a peculiar insistence by the Respondent side, that the Complainant does not have a disability for the purposes of the Act, and by extension does not require an accommodation under Section 16.

Section 6 of the EEA defines a disability  as follows:

“6.— (1) 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,

The Section then goes on to define discrimination on grounds of disability.

(2) 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”),”.

 It should be noted that no issue was raised regarding the existence or requirement for a comparator at any stage in this case. Neither was this requirement discussed or referenced in the Supreme Court in Nano Nagle.

In the text of the Supreme Court Judgement in Nano Nagle, the term ‘position’ is used repeatedly. This usage is consistent with the phraseology of Section 16 concerning reasonable accommodation.

Section 16 of the Employment Equality Act 1998 as amended provides as follows:

“Nature and extent of employer’s obligations in certain cases.

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

In the case of the Complainant, Ms Collins, there is not a single medical report in which she is declared fit to perform the duties of the  post she held in Ward A up to November 2021 based on  her physical i.e., musculoskeletal issues. The prognosis in relation to psychological issues is more guarded but the medical reports from Occupational Health  are unqualified in respect of the physical disability. There is nothing in any report which indicates that the Complainant has anything other than a disability which ‘exists’. It follows therefore that the Complainants physical issues alone qualify her as having a disability for the purposes of Section 6 of the Act. If the Respondent had any doubt about the existence of a disability as defined, they could or perhaps  should have arranged for an ergonomic assessment of the position and the Complainants capacity to fully  perform the duties of the position. For the purposes of this Decision, I am satisfied that the complaint falls for consideration under Section 16 of the Act as a person with a disability as defined in Section 6 of the Act.

In light of the forgoing conclusion, on the face of it, the obligation on the part of the Respondent to assess the nursing post in Ward A in the context of Section 16(3) was not met, meaning the requirement to assess that position to determine whether measures could be taken to comply with terms of the subsection:

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be sofully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

Given that I felt it necessary to remind the Respondent of the above terms at the hearing, taking into account the handwritten notes on the side of the document of September 11th, 2023, I would go so far as to say that it did not seem to occur to, or there was no real understanding of the obligation to examine how the Complainants disability  could be accommodated on Ward A, applying the terms of Section 16(3) to her disability. The fact that she was uncertified fit for her normal duties is irrelevant, it simply has no bearing on the obligation to apply Section 16, where an accommodation is sought. It is axiomatic that if a person requires an accommodation, they are unfit for a position and the object of the exercise in providing an accommodation is to enable the employee to be certified to work in a position, including a modified one. Appropriate measures available for consideration are quite extensive, whether they involve adaptation of premises and equipment, patterns of working time(including a reduction in hours), distribution of tasks/duties or the provision of training, integration of resources. The main concept of reasonable accommodation is as a positive measure to enable those who experience a disability to be retained in employment. This is expressed in Article 5 of the Framework Directive which  mandates that there must be a provision to facilitate persons with disabilities to obtain and to participate as fully as possible in employment McMenamin  J Nano Nagle p.20

Article 5

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.’ [emphasis added].

In the same judgment the Court referred also to the United Nations Convention on Human Rights ratified by Ireland on 20 March 2018 and the contents of Article 1:

‘”…promote, protect and ensure the full enjoyment of all human rights and fundamental freedoms by all persons of disabilities, and to promote respect for their inherent dignity…”

To be clear, in light of the Supreme Court in Nano Nagle, a reasonable accommodation can include stripping out tasks or duties and redistributing those tasks or duties among other staff. The only defence an employer has is one where the remedy would impose a disproportionate burden on them and even then they may need be able to demonstrate they have sought to access public funds or any other funds if necessary or they can demonstrate with the benefit of  medical or other expert advice that an accommodation will not result in the employee being fully capable of performing the duties of the or a position , as modified [my emphasis]. There is, in my view, a particular onus on a publicly funded body, to adhere to the letter and the spirit of the legislation. And the second largest employer of public servants in the State, the HSE, should come under particular scrutiny in terms of demonstrating they both understand and apply the terms and spirit of the legislation. This particular entity with the HSE, Mayo Hospital, has according to its own submission, 700 nursing posts. Consequently, by any objective standard they will be expected to adopt a wide ranging and flexible approach to the principle of accommodation, or at least a serious examination of an accommodation, rather than the incredibly narrow approach adopted by them in this instance. There is nothing at all by way of correspondence or examination the tasks or duties with the role in Ward A  or any other position within the hospital which indicates the hospital management understood the mandatory obligation on them to apply the terms of Section 16 to the Complainant.  The extracts from the hospitals own correspondence, included in their first submission, suggest their reflections became subjectively personal rather than objectively positive.

On the face of it, having regard to the terms of the applicable law, the Respondent has failed to comply with Section 16 of the Act in not making any identifiable effort to apply to its terms in the case of the Complainant. There are however other factors, concerning the stance adopted by  the Complainant which must be considered before coming to a conclusion that the Respondent has failed in their obligations under Section 16 to the extent that they have discriminated against her. To be straight about it, there is nothing in the medical reports or her own correspondence or that of her representative, which suggest the Complainant is seeking an accommodation in line with Section 16 in a nursing position in Ward A. Aside from the physical disability, there is a tone to the medical reports which suggest a resistance on her part to working in any area where there is a possible exposure to physical assaults. This conclusion is consistent with her reluctance to engage with the CNM 1 on Ward A to discuss how the Complainant might return to work and her proffering only the solution of a position in palliative care. There were offers to meet with the CNM1 made in February 2024, but then correspondence with other parties began to cut across that offer and it is not evident why the meeting did not take place, based on the correspondence which I examined. However, even when agreeing to meet, the Complainant was expressing scepticism about any discussion of a return to Ward A based on medical reports and proffering a transfer to palliative care as her solution. Reference was also made by the Complainant in correspondence  to the term ‘light duties’ based on the medical reports. Whatever about accommodating the physical restrictions, the scope to provide a nursing post in a general hospital which could eliminate the risk of assault completely must severely reduce the possibility of an accommodation in a nursing post in an acute hospital setting. A risk factor of this nature is an occupational hazard not a task or duty which could be entirely eliminated or even redistributed. A final point in relation to the terms on which the Complainant was to be returned to work on Ward A. This relates to the insistence that she engage in manual handling training, although at the same time it was being said that she(or any nurse) is not required to lift patients. The insistence on such a pre-condition  would potentially bring about  discrimination by insisting on a particular rule or practice which prevents the disabled person from accessing employment.

Proposals for an accommodation put forward by the Complainant

 It may be said the Complainant did suggest the employment of an additional HCA while she was on duty, but while this was said by her representative at the hearing in August 2024, I can see no place where she proposed such a solution to the hospital management prior to the hearing. Neither is such a proposal contained in the Occupational Health Reports. References in such reports to ‘light duties’ are unhelpful and I have seen such references previously in HSE Occupational Health Reports. Frankly, in my experience, the use of that term is little more than a nuisance-raising an expectation for the employee and providing no practical  guidance to the on-site managers. Moreover, the provision of ‘light duties’ is not consistent with the obligations of a reasonable accommodation at Section 16 of the Act in terms of  the attendant capability issue. I am struck by the limited extent of expert medical advice to the Respondent  in assessing the actual position and any proposed accommodation measured against the capabilities of the employee in terms of her health. A school in Kerry with approximately forty employees could engage experts to provide advice and reports to inform their decision making, including on site assessments. The Respondent in this case, a medical facility much larger in size, did not have or seek such guidance or assessment. Certainly, the reports which were provided to the hearing came nowhere near providing the level of assessment and consideration of the practicalities as those obtained by the school in the Nano Nagle v Daly  case.

The remaining issue to be examined is whether, in principle at least, the only clear accommodation suggested by the Complainant, a move to palliative care could of itself be regarded as a reasonable accommodation. The following are extracts from a judgment by the CJEU which, in my view adequately addresses the test of whether that proposal is one which falls within the meaning of a reasonable accommodation:

XXXX v HR Rail SA (Case C-485/20):

“23 The referring court observes that health condition of the applicant in the main proceedings means that he may be classified as having a ‘disability’ within the meaning of the legislation transposing Directive 2000/78 into Belgian law. However, it observes that the national case-law has not consistently analysed the question of whether, in respect of ‘reasonable accommodation’ within the meaning of Article 5 of that directive, it is necessary also to consider the possibility of redeploying to another job a person who, due to his or her disability, is no longer in a position to perform the job which he or she held before that disability arose.

24 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 5 of [Directive 2000/78] be interpreted as meaning that an employer has an obligation, in relation to a person who, due to his or her disability, is no longer capable of performing the essential functions of the post to which he or she was assigned, to assign him or her to another post, for which he or she has the requisite skills, capabilities and availability, where such a measure would not impose a disproportionate burden on the employer?’

Consideration of the question referred

25 By its question, the referring court asks, in essence, whether Article 5 of Directive 2000/78 must be interpreted as meaning that the concept of ‘reasonable accommodation’ for disabled persons, within the meaning of that article requires that a worker, including someone undertaking a traineeship following his or her recruitment, who, owing to his or her disability, has been declared incapable of performing the essential functions of the post that he or she occupies, be assigned to another position for which he or she has the necessary competence, capability and availability.

26 As a preliminary point, it should be recalled that it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment ‘in matters of employment and occupation’ by providing effective protection against discrimination based on any of the grounds listed in Article 1 thereof, which include disability (judgment of 15 July 2021, Tartu Vangla, C‑795/19, EU:C:2021:606, paragraph 26 and the case-law cited).

27 That directive is a specific expression, within the field that it covers, of the general prohibition of discrimination laid down in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Moreover, Article 26 of the Charter provides that the European Union is to recognise and respect the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community (judgment of 21 October 2021, Komisia za zashtita ot diskriminatsia, C-824/19, EU:C:2021:862, paragraphs 32 and 33 and the case-law cited)….

34 According to the case-law, the concept of ‘disability’ within the meaning of that directive has to be understood as referring to a limitation that results in particular from long-term physical, mental or psychological impairments, which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (see, to that effect, judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 38, and of 11 September 2019, Nobel Plastiques Ibérica, C‑397/18, EU:C:2019:703, paragraph 41)…

43 It must therefore be held, as the Advocate General suggested in point 69 of his Opinion, that, where a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, reassignment to another job may constitute an appropriate measure in the context of reasonable accommodation within the meaning of Article 5 of Directive 2000/78…

44 That interpretation is consistent with that concept which must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 54)….

45 However, it should be observed that Article 5 of Directive 2000/78 does not oblige an employer to take measures which would impose a ‘disproportionate burden’ on it. In that regard, it follows from recital 21 of that directive that, in order to determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance….

48 In addition, it should be stated that, in any event, the possibility of assigning a disabled person to another job is only available where there is at least one vacancy that the worker in question is capable of holding, as the Advocate General observed in point 77 of his Opinion.

49 Having regard to all the foregoing considerations, the answer to the question referred is that Article 5 of Directive 2000/78 must be interpreted as meaning that the concept of ‘reasonable accommodation’ for disabled persons, within the meaning of that article requires that a worker, including someone undertaking a traineeship following his or her recruitment, who, owing to his or her disability, has been declared incapable of performing the essential functions of the post that he or she occupies, be assigned to another position for which he or she has the necessary competence, capability and availability, unless that measure imposes a disproportionate burden on the employer.

The test therefore to be applied in the case of the Complainant in any proposal for an accommodation  is that the Complainant must have the necessary competence, capability and availability to perform the duties of the position in which she is to be accommodated; there must be a vacancy and the matter of disproportionate burden is  an additional consideration. There was no evidence provided by the Complainant to counter the contention of the Respondent, advised to her in writing, that of these factors to be considered, crucially, there was no vacancy. Consequently,  the Respondent did not act in breach of Section 16 in refusing the insistence by the Complainant that she be transferred to palliative care in order to attain a reasonable accommodation. Any  contention by the Complainant that in refusing to accept the proposal of a transfer to palliative care at the particular time, the Respondent was in breach of Section 16 of the Act, is at best a misunderstanding of the term reasonable accommodation and the provisions of the legislation.

Finding on complaint of discrimination

From the forgoing it may be concluded that on the one hand, the employer took insufficient account of their obligation  to apply the terms of Section 16 to the Complainant in terms of examining any reasonable accommodation of her within Ward A taking into account the terms of Section 16(4) in particular. Neither did they examine any alternative nursing post where the Complainant might be accommodated(without resulting in a disproportionate burden). The shortcomings on the part of the Respondent  are cancelled out to a large degree out not in terms of mandatory  liability, but in practice, by the self- evident reluctance of the Complainant to engage in meaningful consideration of any accommodation within Ward A which would have allowed her to return to work there. Her proposal for an alternative accommodation, in palliative care, was without merit. It would be  disproportionate to allocate all of the responsibility for the actions and inactions of the parties to the Respondent side. This is a case of failing to do what they are obliged to do, failing to take appropriate medical advice, relying on a ‘management view’ in the main. To be clear, the result prior to June 2024 might have been the same, but as an adjudicator I have not been provided with sufficient evidence to come to a different finding. In failing to apply the terms of s 16 to the Complainant, correctly, or at all, the finding must be that the Respondent was in breach of the Employment Equality Act at Section 8  in that they discriminated against the Complainant in failing to provide her with the opportunity to participate in the employment as a person with a disability, in comparison with any nurse without a disability  or a nurse with a different disability.

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

   an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

  as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

In failing to follow the terms of Section 16 of the Act in the case of the Complainant prior to June 2024, the Respondent did not  provide the Complainant with a nursing position the duties of  which she is capable of performing unlike other nursing  employees without a disability or with another disability within the employment, all of whom have to be presumed to be capable of performing the duties of their position. Neither has the Respondent provided objective justification for the failure to provide access to paid employment by application of the grounds set out in Section 16. It is not necessary to provide a named comparator in these circumstances for the purposes of concluding the Complainant has experienced less favourable treatment than others in respect of her access to paid employment.

The Complainant therefore succeeds in her complaint of having been  discriminated against on the protected ground of disability under Section 77(a) of the Employment Equality Act 1998 as amended.

Redress under Section 82(1) of the Act

I do not consider that compensation is either appropriate or justified in the circumstances of a case where the Complainant has adopted a stance of requiring ‘her’ accommodation as distinct from a reasonable accommodation within the meaning of the Act. The Complainant has indicated that she wishes to return to work. What is appropriate therefore is an order to ensure that the Respondent attends to their obligations under Section 16 and that they take the appropriate medical advice in doing so.

Terms of an order under Section 82 –( 1) (e) -an order that a person or persons specified in the order take a course of action which is so specified

‘Within the twenty-eight  days of this Decision, the Respondent must assess the options for a reasonable accommodation which they can and will offer to the Complainant, or none. If in putting forward any accommodation, or none,  they must be able to detail to the Complainant the steps which they took to  apply the terms of Section 16 including any expert medical advice or assessment which they availed of in arriving at a conclusion. Any stance in relation to capability or  disproportionate burden must be explained.’

Finally, but not part of the order,  I would strongly urge the Complainant to engage with the Respondent in direct discussions if requested to do so on the basis that she does indeed wish to return to work. This matter will not be resolved through standing on ceremony about representation or recording meetings or communicating through emails. The employment position of the Complainant into the future is unresolved with sickness benefit being her only option at this point. The best way of bringing about an alternative solution is through dialogue.

CA-00064105-001 The complaint of discrimination by Martina Collins against the HSE-Saolta Group, is well founded. Redress is provided by way of an order under Section 82 of the Employment Equality Act 1998,as amended:

‘Within the twenty-eight  days of this Decision, the Respondent must assess the options for a reasonable accommodation which they can and will offer to the Complainant, or none. If in putting forward any accommodation, or none,  they must be able to detail to the Complainant the steps which they took to  apply the terms of Section 16 including any expert medical advice or assessment which they availed of in arriving at a conclusion. Any stance in relation to capability or  disproportionate burden must be explained.’

Reasonable accommodation

Complainant

Respondent

Parties

Martina  Collins

HSE Saolta Group

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-00064105-001

14/06/2024

The Complainant is a nurse in Mayo University Hospital who commenced employment there on the 2nd of January 2012 and is employed as a General Nurse (Enhanced).

This is a complaint of discrimination by the employer under the protected ground of disability with particular regard to the application or otherwise of section 16 of the Employment Equality Act 1998,as amended, where it refers to the provision of a reasonable accommodation to a person with a disability for the purposes of the Act. It should be noted that a separate industrial relations dispute regarding payment under the injury at work scheme was resolved at the hearing in August 2024 following discussions with the undersigned. The second date of hearing was concerned with the complaint under the Employment Equality Act.

Related to the complaint of disability the complaint form stated:

“My employer continues to refuse to make a reasonable accommodation for my disability. I have been out of work since 19th November 2021 due to injuries suffered at work, as a result of which I cannot return to my previous post as staff nurse on ward A in Mayo University Hospital. My employer refuses to make reasonable accommodation for my disability, by assigning me to a lighter position, and has removed me from the injury at work scheme, as a result of which my sick pay entitlement has expired and I am suffering severe financial hardship. In a letter to occupational health on the 6th  November 2023 my ward manager refused to make reasonable accommodation, and this refusal continues up to date.”

The parties made oral and written  submissions on the matter of the accommodation. There was contact between the parties between the date of the first and second hearings but they were unable to reach an agreement on a return to work-in reality no discussion of substance occurred-an issue referenced again later on. At the second hearing The Respondent clarified that they dispute the fundamental basis of a complaint under the protected ground of disability. The rationale for that  position is that the occupational health reports did not define or definitively say that the medical issue in this case fell for consideration within the legislation as had occurred in other Occupational Health Reports. The consequence of this stance must mean that the Respondent is of the view that, effectively, they were not obliged to apply the terms of Section 16 the Act. It follows therefore in arriving at a decision in this case a conclusion is required on the fundamental issue of there being a disability for the purposes of the Act and then if it is concluded that such a disability exists then the matter of accommodation of that disability arises for consideration taking into account the positions expressed by the respective parties regarding such an accommodation. It was confirmed on behalf of the Complainant at the resumed hearing that she does indeed wish to return to work, and this is the remedy she seeks together with compensation by way of a deterrent against the employer due to their failure to provide a reasonable accommodation.

The Complainant worked in Mayo University Hospital without incident over the last number of years. She had some episodes of sick leave relating to work related stress but had never previously suffered a physical injury at work or had any injury which compromised her musculoskeletal system. The job of a registered general nurse can involve lifting and assisting patients to move and she was fit and able to continue this work until the date of the injury at work.

It was submitted that on the 9th and 10th of November 2021 the Complainant suffered an injury at work while “being obliged to assist a morbidly obese patient in sitting up in bed”. The appropriate equipment for assisting in lifting such a patient was not available for a bariatric bed. It was submitted that she suffered severe injury to her musculoskeletal system in assisting this patient during two separate night shifts. In addition, she was also assaulted twice by a different detox patient on the 9th and 11th of November 2021, resulting in her suffering injuries and she attended A&E after both assaults. As a result, she had to go on sick leave on the 19th of November 2021 and has been on sick leave ever since. The Complainant has been seen on numerous occasions by the Occupational Health Department of the HSE and has attended all appointments with an outside body Medmark. On all occasions they have been of the opinion that her injuries were such that she could not return to full duties as a registered general nurse in Mayo University Hospital Castlebar involving lifting patients and she would need to be put on lighter duties. This is also the opinion of her consultant orthopaedic surgeon. The medical reports have recommended a lighter position be made available to the Complainant which local management have refused to do.

In terms of an accommodation, it is a matter of record that the Complainant sought a position in palliative care for which she believes she is qualified. By way of another accommodation, it was submitted that if the Complainant was assisted by an HCA as a dedicated person available to her to assist her in any lifting or manual tasks associated with patient care this would resolve the issues identified in the medical reports. There are however concerns that with the number of patients (usually 35) and the related staffing level especially on night duty that the resources would not be available within the current complement to provide the support required. The employment of an additional HEA was proposed as a reasonable accommodation. Alternatively, there are other jobs in the Hospital where her area of expertise can be used. The position of the Respondent is that there was no vacancy, citing the recruitment embargo.

On the second day of hearing, the Complainant replied to the Respondent contention that the Complainant does not have a disability for the purposes of the legislation, rejecting the Respondent position. Each medical report had confirmed her difficulties in performing the full range of tasks in terms of any manual handling. The disability experienced by the Complainant was not a minor issue; it interfered with her ability to perform certain tasks and there was no prognosis that this disability would be resolved in the near future, and it was therefore projected to be a long-term condition and disability.

At the hearing, the Complainant side confirmed her desire to return to work and sought redress which would provide for her return and compensation to act as a deterrent to the Respondent in future.

The following is an extract from the submission of the Respondent to the hearing on the 21st of August 2024:

“Ms Collins is again seeking remedy from the WRC across a broad range of complaints. There is intent on behalf of the employer alleged by Ms Collins which does not exist. The insinuations are false. These insinuations serve only to malign the employer, Hospital employees and management. The employer would be entitled to take the view that it has gone above and beyond what is required of them in dealing with a barrage of issues. The employer does not confer different treatment of staff members. Ad hoc complaints across a broad range of areas/legislation are disruptive to services. The employer is required to ensure that all schemes are operated in line with legal obligation and financial regulation. The employer does not have discretion to set aside scheme requirements, to compensate where there is to be no loss or to restore benefit where entitlement to same has been exhausted… The Complainant is one of over 700 nurses employed in Mayo University Hospital and 1,700 directly employed staff. No other employee has lodged as many disputes against their employer. Since October 2022 there has been no additional complaint made by any Mayo University Hospital employee for adjudication. In May 2024, the Irish Nurses and Midwives Organisation commended Mayo University Hospital in its management of Long(sic) term absence and supports to nurses in receipt of schemes. The Complainant has been advised time and again that there is no vacancy for palliative care nursing that she can be offered.”

Respondent correspondence and notes in documentation provided to the hearing.

The occupational medical report of 11th September 2023 contains two handwritten notes beside the following extracts:

“Emotionally she cannot contemplate returning to work in a healthcare environment that poses a risk of personal injury to her or could cause her to experience a recurrence of the physical assaults experienced prior to her withdrawal from work.”

Handwritten note: “This is not a realistic option in my opinion”.

And: “I would consider her fit to work in a lighter role were such available to her and I’m happy to review any potential job description in that regard”.

Handwritten note: “Post is RN – these options are not realistic in my opinion”

16th January 2024, CNM 1 to the Complainant:

“I was advised by the Director of Nursing that there had been direct communication with the Hospital Manager and that you were keen to return to work and he asked that I make contact with you to discuss a phased and supported return to the ward. I am unable to advise on alternative nursing roles in the Hospital, my understanding is that you were assigned to A Ward and that is the position you will hold. As you will appreciate, I don’t have responsibility for nursing outside of A Ward and I am unable to advise on any alternatives to your current post.”

19th January 2024, Office of Director of HR, Saolta:

“I would like to highlight the recommendation from within the said OH report of the consideration of a return to work in a “lighter role” and I would ask that you discuss and explore this with the HR Department of Mayo University Hospital.”

7th February 2024, DON to Complainant:

“For clarity, your post is as a registered general nurse on A Ward and this is the post and clinical location that any reasonable accommodation will be considered for. There is a shared responsibility between you and your manager to enable this return to work and to incorporate any and all reasonable accommodations. I would encourage you to work with E to identify what can be done to enable you to return to your clinical role in a phased return.”

9th February 2024, E to the Complainant:

“As per my previous correspondence I am keen to engage with you in order to discuss how we can work together to establish an appropriate phased return to work to your position as staff nurse on A Ward.”

13th February 2024, DON to Complainant:

“1. There are no current vacancies in the palliative care team – any future role would be a CNS post and as it would be promotional from your current role – you would need to apply and be successful at interview. You are free to apply for any future advertised role.”

28th February 2024, DON to Complainant:

“I have review the HSE OH Assessment and the Medmark one and they are not indicating that you are currently not fit to return to unrestricted work. Once you have full HSE OH clearance that you are fit to return to work as a registered nurse without restrictions we can then progress arrangements for a phased return to work. I would ask that you continue to engage and work with the HSE OH team and once a fit to return to work assessment is in place, I will communicate with you directly to manage your return to work.”

11th March 2024, Respondent to Complainant’s solicitor:

“We maintain that no member of staff is required to lift patients and in line with HSE/health and safety policy, there is appropriate equipment available and in use for safe movement of patients across the care setting. As part of a planned, mutually agreed and potentially phased return to work; your client will be required to undertake current training in moving and handling and this is an ongoing and mandatory training requirement for all nursing and other patient care staff.”

And:

“The fact is that nursing duties will always have a potential element of movement of patients, as referenced, with the appropriate equipment and training. As employer, the Hospital is not in a position to expose Ms Collins, as employee, to further risk in this regard and will be guided by independent clinical opinion in this regard.”

“An assessment by way of job analysis has been completed in relation to potential nursing roles for Ms Collins as with other staff members by way of rehabilitation to full employment. There are no nursing posts currently identified within MUH where the potential requirement for movement of patients can be eliminated.”

And:

“Nurse management remain absolutely committed in their efforts to providing reasonable accommodation such as modifications to the role or alternative employment options where this is possible in the context of service delivery in an acute setting and subject to legislative and HSE policy provision. We note the most recent HSE occupational health assessment states that “Ms Collins remains unfit to return to work”. On the basis that Ms Collins is currently medically assessed as not fit to return to the workplace we would ask your client to continue to engage with and attend for HSE occupational health assessments until she has confirmation that she can fulfil her role. We are not in a position to engage further in terms of her return to work until we have occupational health assurance that Ms Collins may return to work.”

And:

“We also give our commitment to implementing any reasonable accommodation to facilitate Ms Collins as identified from the HSE Occupational Health Department to enable her to undertake her current post as a registered general nurse on a ward.”

The Respondent felt obliged to point to an accumulation of 661 calendar sick days in the period July 2015 to July 2020(the year prior to the commencement of the current absence which commenced in November 2021.’

At the resumed hearing the HSE representative indicated that they had sought a meeting with the Complainant to discuss options for an accommodation which may be available in the Hospital in circumstances where recently approval has been given to the Hospital to fill vacancies. However, the Complainant did make herself available to engage in such a discussion.

There are four medical wards in the hospital. The Complainant has previously indicated that she will not work in three of those wards. The OH  summary is that the  Complainant is ‘unfit to work in A Ward’[no definitive reasons provided] but could be considered in an alternative environment. As an acute hospital it is unclear what that ‘alternative environment is ‘were such available to her in keeping with her transferable skills, and this would need to be expanded on.’

Neither party made what might be termed a legal submissions as usually occurs in these cases. This is not a criticism, simply a statement of fact which relates I believe in part to the close connection between the original dispute for payment of injury benefit and the complaint of a failure to provide a reasonable accommodation, the arguments and exchanges around which also resembled an internal employer/employee dispute. In this analysis reference is made to the legislation and elements of judgments by authorities partly to justify the findings, but also to bring some of the foremost elements of precedent decisions and the relevant legislation to the attention of the parties. These will I expect, be well known to the Complainants legal representative as an established practitioner in employment law.

The first point for consideration is whether the Complainant has a disability for the purposes of Section 6 of the Act. This point arises from what I found to be a peculiar insistence by the Respondent side, that the Complainant does not have a disability for the purposes of the Act, and by extension does not require an accommodation under Section 16.

Section 6 of the EEA defines a disability  as follows:

“6.— (1) 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,

The Section then goes on to define discrimination on grounds of disability.

(2) 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”),”.

 It should be noted that no issue was raised regarding the existence or requirement for a comparator at any stage in this case. Neither was this requirement discussed or referenced in the Supreme Court in Nano Nagle.

In the text of the Supreme Court Judgement in Nano Nagle, the term ‘position’ is used repeatedly. This usage is consistent with the phraseology of Section 16 concerning reasonable accommodation.

Section 16 of the Employment Equality Act 1998 as amended provides as follows:

“Nature and extent of employer’s obligations in certain cases.

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

In the case of the Complainant, Ms Collins, there is not a single medical report in which she is declared fit to perform the duties of the  post she held in Ward A up to November 2021 based on  her physical i.e., musculoskeletal issues. The prognosis in relation to psychological issues is more guarded but the medical reports from Occupational Health  are unqualified in respect of the physical disability. There is nothing in any report which indicates that the Complainant has anything other than a disability which ‘exists’. It follows therefore that the Complainants physical issues alone qualify her as having a disability for the purposes of Section 6 of the Act. If the Respondent had any doubt about the existence of a disability as defined, they could or perhaps  should have arranged for an ergonomic assessment of the position and the Complainants capacity to fully  perform the duties of the position. For the purposes of this Decision, I am satisfied that the complaint falls for consideration under Section 16 of the Act as a person with a disability as defined in Section 6 of the Act.

In light of the forgoing conclusion, on the face of it, the obligation on the part of the Respondent to assess the nursing post in Ward A in the context of Section 16(3) was not met, meaning the requirement to assess that position to determine whether measures could be taken to comply with terms of the subsection:

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be sofully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

Given that I felt it necessary to remind the Respondent of the above terms at the hearing, taking into account the handwritten notes on the side of the document of September 11th, 2023, I would go so far as to say that it did not seem to occur to, or there was no real understanding of the obligation to examine how the Complainants disability  could be accommodated on Ward A, applying the terms of Section 16(3) to her disability. The fact that she was uncertified fit for her normal duties is irrelevant, it simply has no bearing on the obligation to apply Section 16, where an accommodation is sought. It is axiomatic that if a person requires an accommodation, they are unfit for a position and the object of the exercise in providing an accommodation is to enable the employee to be certified to work in a position, including a modified one. Appropriate measures available for consideration are quite extensive, whether they involve adaptation of premises and equipment, patterns of working time(including a reduction in hours), distribution of tasks/duties or the provision of training, integration of resources. The main concept of reasonable accommodation is as a positive measure to enable those who experience a disability to be retained in employment. This is expressed in Article 5 of the Framework Directive which  mandates that there must be a provision to facilitate persons with disabilities to obtain and to participate as fully as possible in employment McMenamin  J Nano Nagle p.20

Article 5

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.’ [emphasis added].

In the same judgment the Court referred also to the United Nations Convention on Human Rights ratified by Ireland on 20 March 2018 and the contents of Article 1:

‘”…promote, protect and ensure the full enjoyment of all human rights and fundamental freedoms by all persons of disabilities, and to promote respect for their inherent dignity…”

To be clear, in light of the Supreme Court in Nano Nagle, a reasonable accommodation can include stripping out tasks or duties and redistributing those tasks or duties among other staff. The only defence an employer has is one where the remedy would impose a disproportionate burden on them and even then they may need be able to demonstrate they have sought to access public funds or any other funds if necessary or they can demonstrate with the benefit of  medical or other expert advice that an accommodation will not result in the employee being fully capable of performing the duties of the or a position , as modified [my emphasis]. There is, in my view, a particular onus on a publicly funded body, to adhere to the letter and the spirit of the legislation. And the second largest employer of public servants in the State, the HSE, should come under particular scrutiny in terms of demonstrating they both understand and apply the terms and spirit of the legislation. This particular entity with the HSE, Mayo Hospital, has according to its own submission, 700 nursing posts. Consequently, by any objective standard they will be expected to adopt a wide ranging and flexible approach to the principle of accommodation, or at least a serious examination of an accommodation, rather than the incredibly narrow approach adopted by them in this instance. There is nothing at all by way of correspondence or examination the tasks or duties with the role in Ward A  or any other position within the hospital which indicates the hospital management understood the mandatory obligation on them to apply the terms of Section 16 to the Complainant.  The extracts from the hospitals own correspondence, included in their first submission, suggest their reflections became subjectively personal rather than objectively positive.

On the face of it, having regard to the terms of the applicable law, the Respondent has failed to comply with Section 16 of the Act in not making any identifiable effort to apply to its terms in the case of the Complainant. There are however other factors, concerning the stance adopted by  the Complainant which must be considered before coming to a conclusion that the Respondent has failed in their obligations under Section 16 to the extent that they have discriminated against her. To be straight about it, there is nothing in the medical reports or her own correspondence or that of her representative, which suggest the Complainant is seeking an accommodation in line with Section 16 in a nursing position in Ward A. Aside from the physical disability, there is a tone to the medical reports which suggest a resistance on her part to working in any area where there is a possible exposure to physical assaults. This conclusion is consistent with her reluctance to engage with the CNM 1 on Ward A to discuss how the Complainant might return to work and her proffering only the solution of a position in palliative care. There were offers to meet with the CNM1 made in February 2024, but then correspondence with other parties began to cut across that offer and it is not evident why the meeting did not take place, based on the correspondence which I examined. However, even when agreeing to meet, the Complainant was expressing scepticism about any discussion of a return to Ward A based on medical reports and proffering a transfer to palliative care as her solution. Reference was also made by the Complainant in correspondence  to the term ‘light duties’ based on the medical reports. Whatever about accommodating the physical restrictions, the scope to provide a nursing post in a general hospital which could eliminate the risk of assault completely must severely reduce the possibility of an accommodation in a nursing post in an acute hospital setting. A risk factor of this nature is an occupational hazard not a task or duty which could be entirely eliminated or even redistributed. A final point in relation to the terms on which the Complainant was to be returned to work on Ward A. This relates to the insistence that she engage in manual handling training, although at the same time it was being said that she(or any nurse) is not required to lift patients. The insistence on such a pre-condition  would potentially bring about  discrimination by insisting on a particular rule or practice which prevents the disabled person from accessing employment.

Proposals for an accommodation put forward by the Complainant

 It may be said the Complainant did suggest the employment of an additional HCA while she was on duty, but while this was said by her representative at the hearing in August 2024, I can see no place where she proposed such a solution to the hospital management prior to the hearing. Neither is such a proposal contained in the Occupational Health Reports. References in such reports to ‘light duties’ are unhelpful and I have seen such references previously in HSE Occupational Health Reports. Frankly, in my experience, the use of that term is little more than a nuisance-raising an expectation for the employee and providing no practical  guidance to the on-site managers. Moreover, the provision of ‘light duties’ is not consistent with the obligations of a reasonable accommodation at Section 16 of the Act in terms of  the attendant capability issue. I am struck by the limited extent of expert medical advice to the Respondent  in assessing the actual position and any proposed accommodation measured against the capabilities of the employee in terms of her health. A school in Kerry with approximately forty employees could engage experts to provide advice and reports to inform their decision making, including on site assessments. The Respondent in this case, a medical facility much larger in size, did not have or seek such guidance or assessment. Certainly, the reports which were provided to the hearing came nowhere near providing the level of assessment and consideration of the practicalities as those obtained by the school in the Nano Nagle v Daly  case.

The remaining issue to be examined is whether, in principle at least, the only clear accommodation suggested by the Complainant, a move to palliative care could of itself be regarded as a reasonable accommodation. The following are extracts from a judgment by the CJEU which, in my view adequately addresses the test of whether that proposal is one which falls within the meaning of a reasonable accommodation:

XXXX v HR Rail SA (Case C-485/20):

“23 The referring court observes that health condition of the applicant in the main proceedings means that he may be classified as having a ‘disability’ within the meaning of the legislation transposing Directive 2000/78 into Belgian law. However, it observes that the national case-law has not consistently analysed the question of whether, in respect of ‘reasonable accommodation’ within the meaning of Article 5 of that directive, it is necessary also to consider the possibility of redeploying to another job a person who, due to his or her disability, is no longer in a position to perform the job which he or she held before that disability arose.

24 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 5 of [Directive 2000/78] be interpreted as meaning that an employer has an obligation, in relation to a person who, due to his or her disability, is no longer capable of performing the essential functions of the post to which he or she was assigned, to assign him or her to another post, for which he or she has the requisite skills, capabilities and availability, where such a measure would not impose a disproportionate burden on the employer?’

Consideration of the question referred

25 By its question, the referring court asks, in essence, whether Article 5 of Directive 2000/78 must be interpreted as meaning that the concept of ‘reasonable accommodation’ for disabled persons, within the meaning of that article requires that a worker, including someone undertaking a traineeship following his or her recruitment, who, owing to his or her disability, has been declared incapable of performing the essential functions of the post that he or she occupies, be assigned to another position for which he or she has the necessary competence, capability and availability.

26 As a preliminary point, it should be recalled that it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment ‘in matters of employment and occupation’ by providing effective protection against discrimination based on any of the grounds listed in Article 1 thereof, which include disability (judgment of 15 July 2021, Tartu Vangla, C‑795/19, EU:C:2021:606, paragraph 26 and the case-law cited).

27 That directive is a specific expression, within the field that it covers, of the general prohibition of discrimination laid down in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Moreover, Article 26 of the Charter provides that the European Union is to recognise and respect the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community (judgment of 21 October 2021, Komisia za zashtita ot diskriminatsia, C-824/19, EU:C:2021:862, paragraphs 32 and 33 and the case-law cited)….

34 According to the case-law, the concept of ‘disability’ within the meaning of that directive has to be understood as referring to a limitation that results in particular from long-term physical, mental or psychological impairments, which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (see, to that effect, judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 38, and of 11 September 2019, Nobel Plastiques Ibérica, C‑397/18, EU:C:2019:703, paragraph 41)…

43 It must therefore be held, as the Advocate General suggested in point 69 of his Opinion, that, where a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, reassignment to another job may constitute an appropriate measure in the context of reasonable accommodation within the meaning of Article 5 of Directive 2000/78…

44 That interpretation is consistent with that concept which must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 54)….

45 However, it should be observed that Article 5 of Directive 2000/78 does not oblige an employer to take measures which would impose a ‘disproportionate burden’ on it. In that regard, it follows from recital 21 of that directive that, in order to determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance….

48 In addition, it should be stated that, in any event, the possibility of assigning a disabled person to another job is only available where there is at least one vacancy that the worker in question is capable of holding, as the Advocate General observed in point 77 of his Opinion.

49 Having regard to all the foregoing considerations, the answer to the question referred is that Article 5 of Directive 2000/78 must be interpreted as meaning that the concept of ‘reasonable accommodation’ for disabled persons, within the meaning of that article requires that a worker, including someone undertaking a traineeship following his or her recruitment, who, owing to his or her disability, has been declared incapable of performing the essential functions of the post that he or she occupies, be assigned to another position for which he or she has the necessary competence, capability and availability, unless that measure imposes a disproportionate burden on the employer.

The test therefore to be applied in the case of the Complainant in any proposal for an accommodation  is that the Complainant must have the necessary competence, capability and availability to perform the duties of the position in which she is to be accommodated; there must be a vacancy and the matter of disproportionate burden is  an additional consideration. There was no evidence provided by the Complainant to counter the contention of the Respondent, advised to her in writing, that of these factors to be considered, crucially, there was no vacancy. Consequently,  the Respondent did not act in breach of Section 16 in refusing the insistence by the Complainant that she be transferred to palliative care in order to attain a reasonable accommodation. Any  contention by the Complainant that in refusing to accept the proposal of a transfer to palliative care at the particular time, the Respondent was in breach of Section 16 of the Act, is at best a misunderstanding of the term reasonable accommodation and the provisions of the legislation.

Finding on complaint of discrimination

From the forgoing it may be concluded that on the one hand, the employer took insufficient account of their obligation  to apply the terms of Section 16 to the Complainant in terms of examining any reasonable accommodation of her within Ward A taking into account the terms of Section 16(4) in particular. Neither did they examine any alternative nursing post where the Complainant might be accommodated(without resulting in a disproportionate burden). The shortcomings on the part of the Respondent  are cancelled out to a large degree out not in terms of mandatory  liability, but in practice, by the self- evident reluctance of the Complainant to engage in meaningful consideration of any accommodation within Ward A which would have allowed her to return to work there. Her proposal for an alternative accommodation, in palliative care, was without merit. It would be  disproportionate to allocate all of the responsibility for the actions and inactions of the parties to the Respondent side. This is a case of failing to do what they are obliged to do, failing to take appropriate medical advice, relying on a ‘management view’ in the main. To be clear, the result prior to June 2024 might have been the same, but as an adjudicator I have not been provided with sufficient evidence to come to a different finding. In failing to apply the terms of s 16 to the Complainant, correctly, or at all, the finding must be that the Respondent was in breach of the Employment Equality Act at Section 8  in that they discriminated against the Complainant in failing to provide her with the opportunity to participate in the employment as a person with a disability, in comparison with any nurse without a disability  or a nurse with a different disability.

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

   an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

  as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

In failing to follow the terms of Section 16 of the Act in the case of the Complainant prior to June 2024, the Respondent did not  provide the Complainant with a nursing position the duties of  which she is capable of performing unlike other nursing  employees without a disability or with another disability within the employment, all of whom have to be presumed to be capable of performing the duties of their position. Neither has the Respondent provided objective justification for the failure to provide access to paid employment by application of the grounds set out in Section 16. It is not necessary to provide a named comparator in these circumstances for the purposes of concluding the Complainant has experienced less favourable treatment than others in respect of her access to paid employment.

The Complainant therefore succeeds in her complaint of having been  discriminated against on the protected ground of disability under Section 77(a) of the Employment Equality Act 1998 as amended.

Redress under Section 82(1) of the Act

I do not consider that compensation is either appropriate or justified in the circumstances of a case where the Complainant has adopted a stance of requiring ‘her’ accommodation as distinct from a reasonable accommodation within the meaning of the Act. The Complainant has indicated that she wishes to return to work. What is appropriate therefore is an order to ensure that the Respondent attends to their obligations under Section 16 and that they take the appropriate medical advice in doing so.

Terms of an order under Section 82 –( 1) (e) -an order that a person or persons specified in the order take a course of action which is so specified

‘Within the twenty-eight  days of this Decision, the Respondent must assess the options for a reasonable accommodation which they can and will offer to the Complainant, or none. If in putting forward any accommodation, or none,  they must be able to detail to the Complainant the steps which they took to  apply the terms of Section 16 including any expert medical advice or assessment which they availed of in arriving at a conclusion. Any stance in relation to capability or  disproportionate burden must be explained.’

Finally, but not part of the order,  I would strongly urge the Complainant to engage with the Respondent in direct discussions if requested to do so on the basis that she does indeed wish to return to work. This matter will not be resolved through standing on ceremony about representation or recording meetings or communicating through emails. The employment position of the Complainant into the future is unresolved with sickness benefit being her only option at this point. The best way of bringing about an alternative solution is through dialogue.

CA-00064105-001 The complaint of discrimination by Michelle Collins against the HSE-Saolta Group, is well founded. Redress is provided by way of an order under Section 82 of the Employment Equality Act 1998,as amended.

Reasonable accommodation