Complainant

Respondent

Anonymised Parties

A Healthcare Assistant

A Healthcare Provider

Representatives

Andrea Cleere SIPTU

Self-represented

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-00053756-001

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00053756-002

18/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00053756-003

18/11/2022

The complainant is employed as a healthcare assistant with the respondent over the past 20 years. The complainant states that due to an ongoing back complaint, she had been provided with a reasonable accommodation. However she states that following a complaint raised by the complainant against her direct line manager, this reasonable accommodation was removed; the complainant is seeking to have the reasonable accommodation she previously had to be restored.

The complainant asserts that following a complaint made against her line manager, she was not afforded the requisite policies and procedures as per the dignity at work policy which form part of the terms and conditions of employment. The complainant states that this claim has been referred under the Industrial Relations Act.

The complainant states that a further complaint has been referred under the Industrial Relations Act due to the non-implementation of a phased return to work following Occupational Health recommendations which impacted the complainant’s sick leave negatively. The complainant states that she should have remained on Covid leave if the respondent was not in a position to return her to work in line with Occupational Health recommendations.

The complainant states that she was facilitated with a reasonable accommodation whereby she was allocated to a roster in a specific setting whereby service users required less assistance and support with regards to mobility which was less physically demanding on her condition. The complainant has Osteoarthritis of lumber spine and bilateral hips. On 9 May 2019, the complainant was examined by an Occupational Specialist who recommended that she should be facilitated to remain in that specific work location.

The complainant states that she was assessed again on 3 July 2020 by an Occupational Specialist who advised that the complainant had a condition which was described as musculoskeletal complaints and again recommended that the complainant is facilitated by her employer to remain in her location of work.

The complainant was examined by her own medical practitioner who documented that she has a diagnosis of Osteoarthritis since 2019. The complainant states that her Union SIPTU corresponded to a HR Specialist of the respondent, MQ making representation on behalf of the complainant by way of seeking the restoration of the reasonable accommodation that had been removed from the complainant following her making a complaint against her line manager in October 2021.

The complainant states that to date, she has not been returned to the named work location and is seeking that she is returned to this location as she was previously placed here due to the nature of the work not been as physically demanding as some of the other work locations which will assist her with her condition.

Industrial Relations Claims

The complainant states that she raised a complaint in writing to EH - Regional Director of Nursing against her immediate line manager on 4 October 2021. This complaint raised issues of racism, sexual inuendo, intimidation, threats of disciplinary action, the first meeting which took place regarding this complaint was on 2 February 2022 with EH, Regional Director and MQ, HR Specialist. The complainant states that she was moved location by EH, Regional Director based on the gravity of the allegations that were made in the written complaint however both the Regional Director and HR Specialist met with the complainant with a view to resolving matters on an informal basis and met on two occasion which resulted in the complainant being informed that the line manager did not want to engage in a meeting to address the complaint.

The complainant states that despite the communication on 2 May 2022, a meeting was scheduled for 5 July 2022 between the parties only for the complainant to again receive correspondence advising that the meeting was cancelled and that management would be in contact regarding the next steps.

Thereafter, the respondent, following a preliminary screening under the Dignity at Work policy deemed that the complaint as it was categorised did not meet the criteria under the policy and the respondent provided some guidance on how to progress a complaint. The complainant states it is unbelievable that this type of guidance and support was not provided by the Regional Director of Nursing and the HR Specialist. The complainant is unclear as to what policy the process was being managed under for almost 12 months from October 2021 to August 2022.

The complainant states that she has issues with management on the matter of Covid 19 sick leave and how she was returned following her absence. In this regard she states that she was negatively impacted by the actions of her line manager in not following the guidance of Occupational Health.

The respondent states that the complainant works as a health case assistant in the Intellectual Disability Residential Services. The area where the complainant works has two designated centres each comprising of two community houses for adults with intellectual disabilities.

Area 1 provides residential services for eight adults, male and female with varying levels of intellectual disabilities and are over the age of 18.

Area 2 provides residential services for nine adults who have varying levels of intellectual disabilities and are over the age of 18.

The respondent states that the governance structure for the service is as follows;

Regional Director of Nursing

Assistant Director of Nursing

Clinical Nurse Manager 2 / Person In Charge

StaffNurse

Health Care Assistant

The respondent states that the complainant raised concerns with management in Disabilities in relation to her line manager and matters in the workplace. These matters were raised with the complainant by her line manager between August 2021 to December 2021 and related to Covid 19, roster patterns, managing attendance and performance issues. The respondent states that the complainant’s line manager requested a meeting at local level to address these issues, however this meeting never took place.

Subsequently the complainant contacted the General Manager in Disability Services alleging that she was being bullied and harassed in the workplace. The General Manager contacted the Regional Director of Nursing within Disability Services and requested the matter be explored.

The respondent states that management met with the complainant, her friend OK and HR to discuss issues raised and the process of dealing with same on 2 February 2022 and 28 April 2022. The respondent states that the complainant requested at these meetings that she wished for the matters raised to be resolved informally.

The respondent submits that due to the concerns raised by the complainant at these meetings regarding alleged bullying and harassment, the Regional Director of Nursing made the decision to move the complainant until matters were resolved. It states that this decision was made taking into consideration the complainant’s medical condition and her allegations of bullying and harassment.

The respondent states that it has met the recommendation of Occupational Health and protected the employee following concerns raised by her in the workplace. The respondent states that the complainant was relocated to Area 2 where she was part of a team. The respondent states that the complainant continued to work her historical shift pattern and was under a different line manager. The complainant was advised by management in a letter dated 3 May 2022 that the informal process was concluded.

The respondent states that the Regional Director of Nursing advised that the matter would now progress to the next stage under the Dignity at Work Policy.

CA-00053756-002

The respondent states that the complainant’s complaint against her line manager KH was initially addressed by the Regional Director of Nursing and Human Resources but there was no outcome following the informal process. The respondent states that the complainant’s complaint was forwarded to the Head of HR on 19 August 2022 requesting the complaint to be screened under the Dignity at Work Policy. Following a screening of same, the complainant was issued with a response on 24 August 2022.

The respondent states that preliminary screening of the complainant’s complaint under the Dignity at Work Policy did not meet the required threshold to warrant an investigation. The respondent states that in February 2023 the complainant sent a revised version of her initial complaint to the Regional Director of Nursing. The respondent states that this version was sent to HR for screening on 26 April 2023. The outcome of this preliminary screening was issued by letter on 15 May 2023 and the matter is currently being handled by the Regional Director of Nursing.

CA-00053756-003

The complainant raised concerns with management on the matter of Covid 19 sick leave and how she was returned for her absence at this time. The respondent states that the matter was addressed by the employer thus all absences due to Covid 19 were recorded as such.

Respondent Position

The respondent asserts that the complainant raised concerns of bullying and harassment in the workplace which have been addressed under the Dignity at Work Policy.

The complainant raised two separate complaints which have both been addressed under the Dignity at Work Policy. The first complaint under the Dignity at Work Policy did not meet the required threshold to warrant an investigation. The second complaint was screened under the Dignity at Work Policy and the matter is currently with the Regional Director of Nursing.

The respondent states that the complainant’s move within the Intellectual Disability Residential Services was implemented on foot of her concerns raised in line with the occupational health recommendation to provide reasonable accommodation.

The respondent states that it has addressed the matters raised by the complainant in line with its policies and procedures.  

Complaint under the Employment Equality Acts 

The complainant has stated that she was discriminated against by the respondent on grounds of disability. The complainant stated “I have been working in a particular location which was a recommendation by a general health practitioner; my employer removed me from this location and despite requests to return and raising the issue of reasonable accommodation my employer continues to remove the reasonable accommodation that was previously provided.” 

The complainant has established that she has a disability within the meaning of the definition set out in the Act. In this regard the complainant has a diagnosis of Osteoarthritis.

Having carefully examined the evidence given in relation to this matter, I note that the complainant was moved on foot of a bullying and harassment complaint against her line manager. The respondent had stated that it moved the complainant as a reasonable accommodation measure on the basis of the complaint it received from her. The respondent stated that it supported the complainant throughout the process; in this regard the respondent submitted occupational health assessment reports which outlined the supports offered to the complainant while working in the Intellectual Disability Residential Services. I note that the complainant availed of various services such as the Employee Assistance Programme and relevant medical interventions through the Occupational Health Department and supported by line management.

I note from the documentation submitted that the complainant was and is attending this service and has been signed off by management for extra sessions. Having heard all the evidence with regard to the move of location, I find that the respondent acted in line with the Occupational Health recommendations  in moving the complainant to an alternative house in Intellectual Disability Residential Services. Evidence in this regard was provided in occupational health reports submitted to the WRC dated 22 November 2022, 23 January 2023 9 May 2023 and 7 November 2023.  

In all of the circumstances of the within complainant, I find that the complainant has not established a prima facie case of discrimination on grounds of disability with regard to her relocation to an alternative house in the Intellectual Disability Residential Services. Therefore this complaint fails.

Industrial Relations Dispute - 002

The complainant states “I made an allegation of bullying against my line manager but despite some local meetings with senior management and HR, my employer has failed to recognise the complaint appropriately and has not progressed the matter under the Dignity at Work policy or in line with S.I. No. 674/2020 - Industrial Relations Act 1990”

I note that on foot of this complaint being raised, the matter was followed up by the Regional Director of Nursing. There were meetings held and discussions took place on the matter.  I note that the complainant had requested that she wanted the matter resolved informally.

The matter could not be resolved informally and the matter was forwarded to the Head of HR for screening under the Dignity at Work Policy; I note based on the documentation provided that the complaint did not meet the criteria due to an absence of factual information, dates times, details of the issues and the complainant was advised of this in correspondence from the respondent.

I note that the complainant submitted a revised complaint  which was screened by HR  and was deemed to meet the criteria under the Dignity at Work Policy.  I note that this matter is currently being addressed through the National Investigations Unit and is currently on-going.

Having carefully examined this dispute, I find that the respondent has been tardy in its approach to the completion of the investigation of this complaint. In the circumstances I recommend that the worker’s complaint be investigated thoroughly in accordance with fair procedures in a timely fashion. In that regard I recommend that the employer undertakes to conclude this investigation within 2 months of the date of this recommendation.

Industrial Relations Dispute -003

The complainant states that “I was absent from work due to Covid 19, Occupational Health recommended a phased return to work my manager would not implement this which meant I was not returned to work at an earlier stage, I was placed on sick leave rather than Covid leave which I believe was incorrect, this has impacted negatively on my sick leave and I am seeking to have this remedied.”

I note from the information provided at hearing that this dispute concerns the matter of absence due to Covid and relates to a period from 5 December 2021 to 20 February 2022. I note that at the hearing the employer agreed to review all the records on this issue that cover this period of time and amend the records accordingly so that there is no negative impact on the worker’s sick leave record.

In relation to this dispute I recommend that the employer carries out a comprehensive review relating to the period of 5 December 2021 to 20 February 2022 and appropriately categorises the absence of the complainant and to amend her sick leave record accordingly.   

I find that the complainant was not discriminated against by the respondent on the grounds of her disability.

Employment Equality Acts, disability, reasonable accommodation, industrial relations dispute