ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00049359

Parties:

	Complainant	Respondent
Parties	Yvette Robinson	Health Service Executive St Mary's Hospital, Phoenix Park

Representatives

Setanta Landers Setanta Solicitors

Eamonn Ross Employee Relations Department

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00060671-001	21/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00060671-002	21/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00060671-003	21/12/2023

Date of Adjudication Hearing: 20/06/2024

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The complainant is a nurse employed by the HSE since July 2003.

This complaint was received by the Workplace Relations Commission on 21st December 2023.

Summary of Complainant’s Case:

Background

· The Complainant commenced employment with St Michael’s House on the 1 July 2003 as Clinical Nurse Manager 2 (CNM2).

· She was deployed to St Mary’s Hospital on the 25 February 2013.

· She has over twenty years’ experience.

· Prior to her deployment with St. Marys Hospital, our client sustained serious neck and back injuries at work.

· She subsequently has residual injuries and suffers from chronic pain syndrome.

· She has been unable to work frontline on the wards since.

· An occupational health assessment took place on the 31 January 2013 prior to her redeployment.

· Ms Robinson was initially facilitated with reasonable accommodations such as an ergonomically assessed desk and office chair in the Nursing Administration Office.

· In or around December 2018, Simone Comiskey was appointed director of Nursing in St Mary’s Hospital and Ms Ligimol Varghese was appointed Assistant Director of Nursing.

· In or around 2020 onwards, Ms Robinson’s accommodations began to be gradually rescinded by Ms Comiskey and Ms Varghese

· In previous years, the Complainant had been granted the Shorter Working Year Scheme.

· Ms Comiskey initially denied our clients request for the scheme on 16 December 2019 for the 2020 working year, as she wished to take leave during the time requested.

· This was later granted.

· On granting the Complainant’s application, Ms Comiskey verbally communicated that the Complainant would not be granted the scheme in the next year.

· Our client’s applications for the scheme were denied in 2021 and 2022.

· Our client referred herself to occupational health on the 29 June 2020. Ms Comiskey advised that she would complete a management referral.

· This did not materialise.

· An assessment took place on 21 July 2020.

· It found Ms Robinson was fit to return to work.

· It recommended that she be accommodated in the workplace and that her workspace height be increased.

· It suggested that she would benefit from a sit to stand desk.

· The Complainant requested a sit-to-stand desk.

· The Complainant was initially informed that in the interest of fairness the desk would be purchased for the use of all staff and that a second desk would be purchased for her exclusive allocation.

· The Complainant was granted the desk in and around the end of August 2020.

· Our client requested annual leave in or around March 2020, December 2020 and March 2021 and was not facilitated in her requests where other staff members were.

· Information regarding the Ms Robinson’s Occupational Health review of July 2020 was circulated to a number of staff members by email which disclosed her personal medical information.

· Ms Robinson informed Ms Comiskey by email on 23 August 2020 that this made her feel undervalued and that she was uncomfortable with this information being shared.

· Ms Comiskey apologised.

· While on sick leave in or around October 2020 our client was contacted by Mr Kevin Quigley regarding roster issues. The Complainant emailed Ms Comiskey expressing her dissatisfaction with this on the 28 October 2020. A copy of the correspondence is included in Appendix 6 of the booklet of supporting documents. The Complainant advised:

· Mr Quigley had been told that the Complainant had appointments on the day annual leave days which had been revoked.

· Her annual leave had been booked off since 03 September 2020.

· The Complainant is physically incapable of working three days in a row due to her chronic illness.

· On 4 November 2020 the Respondent emailed Ms Comiskey, addressing these concerns. Ms Comiskey’s reply included the following:

· She apologised to the Complainant for being contacted while on sick leave.

· She set out the reason why the Complainant’s roster had was due covid pressures and an increase in patients.

· The Respondent argued that the Complainants annual leave had not been approved thus it had not been revoked.

· Ms Comiskey stated that a sit-to-stand desk had been provided as per the complainant’s occupational health suggestion, however the desk was for the use of all staff.

· She advised a second desk for the exclusive allocation of the Complainant would be sought.

· Ms Comiskey requested that the Complainant attend a further referral to the Occupational Health Department. She sought for our client to sign the referral.

· On 4 November 2020 the Complainant replied to the Respondents submissions, advising the following:

o She had already been self-referred to Occupational health for supports.

o She was concerned that a strong level of resistance has grown against her taking annual leave.

o It felt as though the dignity at work policy had been and was being compromised, where she was being treated less favourably to her colleagues.

o The complainant questioned exactly what was expected of her in her role.

o Ms Comiskey had changed the existing working conditions and practises of her workplace without any formal communication.

· In or around the first week of November 2020. Ms Comiskey requested an up-to-date occupational assessment of the Complainant.

· On 4 December 2020Ms Varghese emailed the Complainant in respect of her Christmas roster. She informed the Complainant the following:

o The Complainant’s Christmas shift would be from 07:45 to 14:45 instead of 07:45 to 14:45.

o Her shift of 3 January was changed to 2 January. The Complainant lost Sunday premium payment.

· The Complainant emailed Ms Varghese on 5 December 2020 stating that she was not in the position of to accept these roster changes so close to Christmas.

o She advised that she had made time requests 4 weeks in advance, in line with policy.

· On 7 December 2020 Ms Varghese wrote to the Complainant.

o The Respondent advised that our client had failed to mention that she would not in the position to work a full day on Christmas day.

o She was sanctioned to work a full day on Christmas day.

· On 7 December the Complainant advised Ms Varghese she would not be in the position to change her roster.

o She had made her roster request 4 weeks in advance.

o She highlighted the nurse covering her last year worked a half day.

o She raised concerns that she was being treating unfairly in comparison to other staff members.

· On 8 February Ms Varghese wrote to the Complainant. She stated that she had sanctioned the Complainants annual leave request, apart from her request of 16 March 2021

o Ms Varghese advised however that the Complainant must make arrangements to change her leave request of 16 March to a different day.

· The Complainant wrote to Ms Varghese on 9 February 2021. She refused to change her annual leave day.

o She stated she had already changed her leave to facilitate for another colleague.

· On 10 February 2021 Ms Varghese wrote to the complainant. She advised the Complainant was not authorised to take leave on 16 March.

· On 3 March 2021 the Complainant wrote to Ms Varghese. She set out the following:

o She did not understand why she was not granted her annual leave.

o Other members of her team were easily replaced to facilitate for their annual leave.

o She feels as though she is being treated differently in comparison to her colleagues.

o She was not in the position to work on 16 March.

· On 5 March 2021 Ms Varghese wrote to the Complainant. She advised the following:

o The Complainant’s leave on 16 March was not sanctioned due to service requirements.

o Ms Varghese referred to complaints made by the Complainant in respect of the height adjustment table which was bought in response to the Complainants Occupational Health Recommendation.

o Ms Varghese stated that she thought it would be disrespectful not to allow other members of staff use the table.

o She advised the Complainant was ‘more than welcome’ to use the table.

o She again stated that our client was not authorised to take leave on 16 March 2021.

· The Complainant wrote to Ms Varghese on 6 March 2021. She raised the following concerns.

o It was clear there is a double standard in place, where others were afforded annual leave whilst the same facilitations were not being made for the Complainant.

o Her Occupational health recommendations had not been respected.

o She was rostered in for three days in a row when it had been established that she is not in the position to do this due to her health issues.

· On 8 March 2021 Ms Varghese wrote to the complainant to advise that her annual leave of 16 March would be granted.

o She informed the Complainant that she was going to escalate the Complainants accusations of discrimination to the line manager.

o In or around June 2021, construction work began in our client’s office. The Complainant was given two days’ notice of the commencement of the works. As a result, the Complainant was moved to a shared workstation in a difference office.

o No consultation or occupational health assessment took place prior to the move to consider our client’s ergonomic needs.

o Our client’s condition and pain levels were exacerbated due to this inadequate workspace.

o The Complainant went on certified sick leave while awaiting an assessment from Occupational Health.

o In or around the 26 July 2021 the Complainant attended Occupational Health. She was found to be fit to return to work, but the assessment noted the following:

‘It is important that she continues with her ergonomically assessed workstation in work to support her managing her back conditions in work. This includes avoiding overstretching and reaching around her workstation. This may necessitate reverting back to her ergonomically assessed office set up.’

· On the 6 of August 2021, Ms Comiskey wrote to Ms Robinson seeking to discuss her work environment, taking account of the Occupational Health report. She also informed the Complainant that the office maintenance had been completed.

o While on sick leave the complainant’s doctor has written medicate certificates to cover more than a week of absence in July and August.

o In the letter, Ms Comiskey accepted this. She advised however that going forward the Complainant would be required to provide weekly medical certificates.

o Ms Comiskey sought to arrange a meeting in respect of the Complainants work environment, following her most recent Occupational Health Report.

· While construction work had ceased, we understand the Complainant no longer had an individual workstation. Her office chair and desk could be adjusted by other users to accommodate their preferences.

· It was proposed by Ms Ligimol Varghese that Ms Robinson not to be returned to the Night Office but remain in the temporary office space on a permanent basis.

· On the 11 August 2021, our client contacted Ms Ligimol Varghese regarding her return to work. Ms Robinson requested an ergonomic assessment of the proposed workspaces in the light of the Occupational Health report. Ms Varghese assured Ms Robinson that she would arrange for an ergonomic assessment.

· Our client requested for that assessment to take place in respect of the night office, and that she advised Ms Varghese that she was fit to return to work once the recommendations of the Occupational Health Report had been implemented.

· It was agreed between the Complaint’s trade union representative and Ms Comiskey that some form of Occupational Leave would be applied while awaiting resolution, without the need for a medical report.

· The ergonomic assessment took place on the 20 August 2021 by USafety.

· On the 27 August 2021, Ms Comiskey wrote to Ms Robinson.

o She stated that her Occupational Health Report did not stipulate that her fitness to work was dependent on the outcome of the ergonomic assessment.

o She stated that two offices were available for her to use and that her role was solely office based.

· On the same day, our client’s INMO representative Ms Noelle Hamilton wrote to Ms Comiskey on Ms Robinson’s behalf setting out the issues with the workspaces provided.

o This letter set out that the Respondent has a duty under the Employment Equality Act to provide reasonable accommodations for her disability to ensure she could fulfil her role in full.

o Ms Hamilton met with Ms Comiskey on the 1 September 2021 to discuss the issues raised by Ms Robinson in relation to her workplace.

o Following this meeting, Ms Comiskey wrote to Ms Hamilton stating that at all times management had endeavoured to make reasonable accommodations for Ms Robinson and denied that she was being discriminated on the basis of her disability.

· On the 16th of September 2021, the Complainant attended onsite to review the proposed office space ahead of her upcoming scheduled roster.

· That day, the Complainant emailed Ms Comiskey setting out the difficulties she had experienced with the proposed office in the past. Ms Robinson highlighted:

o The office chair was damaged and did not provide lumbar support.

o It was straining to manoeuvre the plastic matter on the chair.

o Being placed in a separate office would increase physical demand as she would have to carry files back and forth and go between the offices for the use of the printer.

o Ms Robinson also raised her concerns regarding the shared use of the workspace.

o She noted that reasonable accommodations were not in place to prevent further work-related injuries.

o She requested that her original desk set up be returned to the night office.

· On 21 September 2021, Ms Comiskey emailed Ms Hamilton

o She set out that Ms Robinson would not be authorised to work from home pending the outcome of the ergonomic report.

o She stated she had concerns in respect of her home environment given her medical condition.

o This conclusion was not supported by medical evidence.

· On 21 September 2021, Ms Comiskey emailed Ms Robinson to inform her that she had signed a draft ergonomic report that identified a number of small adjustments to her workstation and that she had acquired a replacement of her faulty chair.

· The Ergonomic Assessment Report was received by Ms Robinson on the 24 September 2021. This report made the following recommendations:

o If Ms Robinson was to remain in the new office space, consideration should be given to relocating equipment and files from the night office.

o If Ms Robinson was to return to the night office, there would have to be a clear understanding that that is a shared space and cooperation is needed between users.

o The chair of the night office can be shared between users while the chair in the proposed office was broken and would have to be replaced. It was not necessary for Ms. Robinson to await a new chair to be replaced before returning to work.

o The removal of carpet in the office should be considered.

o An adjustable monitor arm should be purchased.

o A hands-free Bluetooth headset should be purchased.

o A large mouse mat should be purchased to allow placement of both the mouse and keyboard.

o The provision of ergonomic equipment is essential.

o Ms Robinson must be aware of the importance of taking regular breaks.

· Following receipt of the report, a meeting took place between Ms Comiskey, Ms Varghese, Ms Robinson and Ms Hamilton on the 1 October 2021. In the meeting the Complainant indicated that she had several concerns regarding the ergonomic report.

o She requested specialist advice regarding an office chair as her original chair was damaged.

o It was recommended that it be replaced during the on-site assessment. She advised she was not in the position to return to work safely until all elements of the ergonomic report were in place, including an appropriate replacement chair was procured.

o Ms Robinson also expressed concerns in adjusting the chair in the night office between users, as this could cause her further strain.

o It was agreed in the meeting that Ms Robinson had until the 6th of October to seek the necessary equipment from the report.

· A separate discussion also took place during the meeting regarding the Complainant’s nursing qualifications.

o Ms Comiskey raised issue with the fact that our client was registered as a Children’s and Intellectual Disability Nurse and not as a General Nurse.

o Ms Robinson stated she felt further victimised and discriminated against for this issue to be raised at that time.

o It was agreed that a separate meeting would be arranged to discuss the possibility of identifying suitable alternative employment opportunities for the Complainant within Dublin.

· On 5 October 2021, the INMO wrote to Ms Comiskey setting out that the matter of the allocation of leave to Ms Robinson was being referred to an independent mediator.

· On 5 October 2021 Ms Comiskey wrote to the Complainant. Ms Comiskey set out the issues which had been discussed in the meeting of 1 October 2021, such as:

o It was agreed that you could be afforded Monday 4th, Tuesday 5th and Wednesday 6th October to seek out the necessary recommended equipment.

o Management would require the Complainant to report on-site or alternatively apply for leave should she not wish to return to the workplace.

o Adjustments may be made to the Complainant’s pay in line with her absences.

o It had come to the attention of Ms Essene Cassidy, Head of Services for older Persons that Ms Robinson was not a registered nurse on the nursing register.

o A separate meeting would take place to discuss the Complainant’s Nursing qualifications.

o A separate meeting would take place to explore alternative employment within Dublin.

· On 7th of October 2021, the INMO responded to Ms Comiskey’s letter of 5 October 2021. They advised:

o The issues regarding nursing qualifications would be dealt with in a further meeting.

o Ms Robinson was in the process of sourcing the various equipment pieces.

· On 12 October 2021 the Complainant attended KOS Ergonomics to be fitted for an office chair. The report of this assessment was sent to Ms Comiskey on 14 October 2021.

· On the 4 of November 2021 the Respondent wrote to the Complainant. The letter sought to provide clarity in response to the INMO’s request in respect of:

o Equipment recommended in the Ergonomic Report

o The Respondent assured they had sourced all recommended items od equipment.

· Nursing qualification and registration on the Division of Nursing

o The Respondent stated that Ms Robinson was not registered in the General Nurses Division of the Nursing and Midwifery board of Ireland (NMBI) register.

o The Complainant accepted that she was registered with the NMBI in the intellectual Disability Division as a registered nurse for Intellectual Disability and in the Children’s Division as a registered Children’s Nurse.

o The respondent held Ms Robinson was only qualified to provide care for persons with Intellectual Disabilities and Children.

o The Respondent held Ms Robinson was not entitled to provide care to older persons.

o The Respondent held that Ms Robinson could continue her role except for clinical input care, clinical rounds on each ward and the day hospital and clinical input to admissions and discharges pending a further meeting which would find a permanent solution.

· On 4 November 2021 Ms Robinson wrote to Ms Varghese. where Ms Robinson set out the following concerns:

o A different individual carried out the assessment from the individual who complied the report.

o Mr David Cavanagh completed the on-site assessment while Ms Lisa Thomas Completed the report.

o The report contained a significant amount of personal information, and no consent was sought prior to the sharing of her personal medical information by Usafety.

o The report was shared with Ms Varghese and Ms Hamilton of the INMO without consent.

o Ms Robinson requested that the report not be shared with anyone and that the information be removed from her staff file. To date, Ms Robinson has received no confirmation that this has been done.

o Ms Robinson had not been given the draft report, nor was she given an opportunity to contribute to the final version of the report.

o No functional assessment took place for the shared office space.

o No information was contained in the report regarding the shared desk space at the time of the assessment.

o The flooring in the separate office was not addressed in the report.

o Insufficient regard was given to the limitations caused by Ms Robinson’s chronic pain and degenerative disc disorder.

· Following the letter dated 4 November 2021, the Complainant emailed Ms Comiskey on the 8 November 2021 to request a meeting to discuss its contents.

· On 8 November 2021 the Complainant self-referred to an Occupational Health Assessment. The report stated:

o Ms Robinson had raised concerns regarding the ergonomic assessment. It was recommended that a second opinion on the Complainant’s ergonomic assessment may be necessary.

o The Complainant has work-related concerns and that she would benefit from 1 to 2 weeks’ time off work.

o There has been no follow up from the Respondent in respect of this.

· On 8 November the Complainant emailed Ms Varghese to advise her roster did not reflect her working hours request.

· On 10 November 2021 the Complainant followed up on this issue. She sought clarification on her roster. She advised no changes in the roster were communicated to her.

· On 11 November Ms Varghese emailed the Complainant. She informed the Complainant it is her responsibility to check the roster in advance to allow for changes.

o She stated the changes to the roster were final.

· On the 11 November 2021 Ms Robinson replied.

o She stated that she is not on-site, thus she did not have access to an updated roster.

o She was not contacted to be advised there had been changes to her roster.

o The Complainant was removed from the Sunday roster which attracted premium pay.

· Ms Robinson returned to certified sick leave from the 13 November 2021 to the 19 November 2021 for work related stress.

· On the 13 January 2022, Ms Varghese wrote to Ms Robinson enclosing her sick record.

o It was noted that a review of her salary payments was being carried out which may possibly result in a salary adjustment.

· Ms Robinson tested positive for Covid on the 22 November 2021 and has been absent from that date until now due to long Covid.

· The Complainant noted that a review of the Complainant’s salary payments was being carried out which may possibly result in a salary adjustment.

· On the 14 January 2022, Ms Varghese emailed Ms Robinson regarding her absence record.

o She stated that if the complainant was fit to return to work and was not on certified sick leave, any absences would have to be either unpaid or annual leave.

o She noted any illness following the Complainant’s Covid vaccination did not qualify for Special Leave with pay.

· On the 17 January 2022, the complainant emailed Ms Varghese and Ms Comiskey raising issues with the email of the 14 January. The Complainant raise the following points:

o The absence periods referred to in Ms Varghese’s email had been referred to an independent mediator as the parties were in dispute over the certification for absences.

o She had made numerous requests to be relocated to the to the previously ergonomically assessed office (the Night Office) which had been denied.

o Ms Robinson disputed some of the absence dates recorded by Ms Varghese which she had in fact worked.

o She put her employers on notice of that fact that her current work situation was putting her under extreme stress and has exacerbated her existing injury.

o Ms Robinson noted that the removal of her reasonable accommodations by management meant that she could not safely attend work.

o She highlighted that her rosters were changed without notice in November when she attempted to return to work, and that she felt that there was a bias and hostility against her.

· Ms Varghese responded on the 20 January 2022.

o informing our client that she would be reduced to half pay under the terms of the Sick Pay Scheme from the 24 January 2022 if she did not return to work..

o Ms Varghese stated in her email that she would consider annual leave requests upon Ms Robinson’s return to work and refused to grant such requests while Ms Robinson was medically unfit to return to work.

o This email contradicts Ms Varghese statement on the 14 January that Ms Robinson was fit to return to work and any further leave would be either unpaid or annual leave.

· On the 20 January 2022, a deduction of approximately €1,300.000 was made from the complainant’s fortnightly salary without notice.

o Ms Robinson emailed Ms Varghese regarding this, where it was discovered that senior management had made a mistake. The issue was addressed, and the deducted amount was returned to the Complainant. The Complainant requested an updated sickness absence record to ensure no further mistakes were made. To date this has not been provided.

· On or around the 7 January 2022, our client telephoned Ms Varghese to request a management occupational health referral in relation to her Long Covid in line with the attendance policy. To date no referral has been made.

· On the 21 January 2022, Ms Karen Fagan reached out to our client to suggest that all parties meet once she was feeling better.

· On or around this time, our client was informed by her trade union representative that the hospital had declined to progress the mediation on her absence records.

· On or around the 11 February 2022, our client emailed Ms Varghese to request a response to the issues she had raised regarding the Ergonomic Assessment Report.

· On the 14 March 2022, Ms Comiskey wrote to Ms Robinson informing her that Ms Varghese had been promoted and left St Mary’s Hospital.

o This letter addressed the concerns raised in our client’s email of the 4 November 2021 and stated that the Ergonomic Assessment Report would not be shared, and an amended redacted report would be kept on file.

o She stated that the concerns raised by our client regarding inaccuracies in the report were a matter for Usafety.

· On the 22 March 2022, our client made a Freedom of Information Request from the Respondent.

· On the 29 March 2022, Ms Comiskey wrote to Ms Robinson informing her that her sick pay would expire from the 21 March 2022. Ms Comiskey advised our client to apply for Temporary Rehabilitation Renumeration (TRR) if she was still unfit to return to work.

· On the 14 April 2022, Ms Comiskey wrote to our client seeking to arrange an Occupational Health Assessment for Ms Robinson as part of her TRR application.

· On 21 April 2022 Ms Comiskey wrote to the Complainant enclosing an Occupational Health Form for completion.

· The Complainant responded on 21 April 2022, raising the following points:

o She was on sick leave due to Covid related illnesses.

o She had already attended Occupational Health in respect of her back and neck injuries.

o Concerns have already been raised after Ms Comiskey referred her to Occupational Health in November 2020.

o She wished for the referral to be revoked and for her employer to focus on her reason of absence; long Covid.

o There were significant delays in processing this application. Payment under that’s scheme was received in or around July 2022 and was backdated to March 2022.

· Ms Robinson received the results from her FOI request on the 23 May 2022. The results from the Freedom of Information Request revealed the following:

o There were significant differences between the drafted report prepared by Usafety and the final report.

o A copy of a draft report with tracked comments by Ms Comiskey was provided as part of the request. Ms Comiskey and Ms Varghese had input into the contents of the report where Ms Robinson did not. This was intended to be an independent safety report.

o An email exchange between Ms Varghese and Human Resources while our client was on Covid related sick leave enquiring about disciplinary procedures for absenteeism.

o An email to Usafety on the 11 August 2021, where Ms Varghese admits that the Occupational Health Report requires the Ergonomic Assessment to be carried out prior to our client’s return to work.

o This was denied by Ms Comiskey in a letter dated the 27 August 2021, where our client was pressurised to return to work prior to the completion of the report.

o The Complainant’s personal and medical information were discussed at several Older Persons Services meetings. The following notes were made on the following dates:

· On 23 September 2021 ‘EC to follow up with Head of HR regarding Yvette Robinson’.

· 1 October 2021 ‘The matter of YR remains open’.

· 8 October 2021 ‘SC advised that there is one nurse without correct qualification. DON has written to the staff member following advice from Head of Older Persons Services and HR’

· On or around August 2022 our client applied for Critical Illness Protocol Payment and was denied.

o A grievance was opened in relation to this matter in or around September 2022.

o The INMO conducted an appeal in respect of this.

· On 2 June 2023 Ms Hamilton emailed Ms Robinson.

o Ms Hamilton advised that the Head of Services for Older Persons, Essence Cassidy determined that the Complainant would receive Critical Illness Payment on ‘compassionate grounds’.

o The Complainant wrote to Ms Cassidy on the 9 June 2022 requesting an internal review of the decision in favour of her CIP entitlement.

o On 16 June 2023 Ms Hamilton emailed the Complainant.

o Ms Hamilton advised that Ms Robinson’s Critical Illness Payment was being calculated by management.

o The Complainant has never received this calculation.

· On the 27 June 2023, our office opened a formal grievance and a protected disclosure under Section 5 of the Protected Disclosures Act on our client’s behalf. The Protected Disclosure was specifically in relation to:

o Why Ms Robinson’s accommodations were removed in June 2021 without prior consultation, an ergonomic assessment of the proposed new workplace, or an occupational health assessment.

o Why Ms Robinson was not permitted to simply return to her original individual office space following the end of construction works.

o Why senior management were involved and had direct input in the creation of the Ergonomic Assessment report. The report should have been carried out independently.

o The behaviours of Ms Comisky and Ms Varghese in the handling of our client’s issues were unprofessional and demonstrate a bias against our client, particularly in relation to the following:

§ The frequent mis-recording of absences resulting in increased financial loss to our client.

§ The refusal of annual leave requests by reason that our client was ill while simultaneously informing our client that she was fit to return to work.

§ The changing of rosters without notice and removal of premium pay days from our client.

§ The enquires made to Human Resources regarding disciplinary procedures for absenteeism on the 24 November 2021 while Ms Robinson had Covid 19 and was out of work as per HSE guidelines. This is penalisation.

§ The sharing of Ms Robinson’s private medical information internally and with union without prior consent.

§ The removal of Ms Robinson’s reasonable accommodations without prior notice and continued refusal to re-instate the accommodations following the end of construction work without any justifiable reason.

§ Ms Comiskey and Ms Varghese raised concerns regarding our client’s qualifications after she had been carrying out the role for over eight years. This issue was only raised after our client raised issue with the removal of her reasonable accommodations. This suggests our client was penalised for raising concerns of her safety in the workplace.

§ We consider this as penalisation under the Protected Disclosures act.

· Our office requested that a grievance and investigation be opened into the above behaviours and more particularly:

o The endangering of our client’s health and safety and well-being by removing lawfully required accommodations for a person who has a disability.

o The manipulation/ interference with independent ergonomic assessments.

o The sharing of Private medical data without consent to third parties.

o The denial of contractual obligations.

o Interference with rosters and hours such as to constitute bullying/ harassment/ victimisation.

o Denial of annual leave such as to constitute bullying/ harassment/ victimisation

o Interrogating qualifications which is not the role of management which is penalisation/ victimisation.

o Delays of Temporary Rehabilitation Rate and Critical Illness Protocol schemes such as to constitute bullying/ harassment/ victimisation.

o Denial of meaningful/ timely engagement such as to constitute bullying/ harassment/ victimisation.

· Our office requested that an independent investigation be carried out by an independent investigator as soon as possible.

· On 1 July 2022, Ms Essene Cassidy, FOI Internal Reviewer, wrote to affirm the original decision.

· On 7 July 2023 Ms Hamilton wrote to the Complainant. Ms Hamilton advised the following:

o The Respondent had paused their considerations in the matter of the Complainant’s CIP application.

o The Complainant was required to confirm that our office was now acting on her behalf and that INMO representation was no longer required.

o On 10 July 2023 the Complainant emailed Ms Hamilton to advise that our office had been instructed to act on behalf of her.

· On the 20 July 2023, Director of Nursing, Caroline Gourley wrote to our office. Ms Gourley sought confirmation in relation to:

o Whether Ms Robinson wished to be further assisted by her INMO representative.

o Whether Ms Robinson wished to invoke a grievance in respect of the Grievance Procedure for the Health Service.

o To advise that the protected disclosure matter would be raised with the Protected Disclosure Office.

· Our office wrote to the respondent on the 21st of July 2023

o We confirmed that our client wished to progress a formal grievance.

o We confirmed we are the complainant’s solicitor on record and that our client no longer required the services of the INMO.

· On the 27 July 2023 the Respondent invited our client to a meeting under Stage 1 of the Grievance Procedure for the Health Service for the 1 August 2023.

· On the 31 July 2023 the Ms Rosemary Grey, the HSE Authorised Person for Protected Disclosures wrote to us stating that that the content of our letter of the 27th of June 2023 had not been considered a protected disclosure, on the basis that the allegations made against the employer concerned the complainant exclusively.

· On the 31 July 2023, our office wrote to the Respondent to seeking to reschedule the meeting of the 1 August 2023, to allow a representative from our office to attend.

· The Respondent wrote to our office on 1 August 2023, to schedule a meeting under Stage 1 of the Grievance Procedure, for the 31 August 2023.

· Our office wrote to the respondent on 4 August 2024 confirming that we would be in attendance at the 31 August 2023 meeting.

· Ms Emer O’Connor contacted our client in or around September 2022 requesting an occupational health referral and indicated that the referral was an attempt to fulfil the post.

· On 1 September the Complainant wrote to Ms O’Connor to advise she was already engaging with occupational health.

· On 6 September Ms O’Connor wrote to the Complainant to advise that the occupational health referral was an error.

· On the 9 October 2023, the respondent wrote to our office following the meeting. The letter outlined the findings of the meeting as follows:

o The respondent offered to arrange another ergonomic assessment.

o The Respondent offered to purchase a new chair, solely for Ms. Robinson’s use, in line with the requirements of the chair set out in the ergonomic assessment. The original chair purchased could not be located.

o The Respondent offered to re-locate our client to the nursing administration office.

o In relation to ‘occupational health leave’ the Respondent established that there is no such thing as ‘occupational health leave’ and held they would request an in-depth review of this matter.

o The Respondent acknowledged that Ms Robinson’s INMO Union Representative had requested that Ms Robinson be considered for CIP and notes that the extended sick leave was not approved. The respondent held that they would raise this issue with senior management and request for this issue to be further considered.

o The Respondent acknowledged the accusations made in relation to Ms Robinson’s nursing qualifications.

o The Respondent advised that she wished to offer assurances as per her letter dated 4 November 2021 to find a satisfactory solution for the respondent’s return to work.

· On the 21 December 2023, our office wrote to Ms Grey. We respectfully disagreed with her assertion that that the contents of our communication did not meet the criteria of a Protected Disclosure in respect of:

o Section 5(1) of the Protected Disclosure Act 2014 which defines a ‘protected disclosure’ as a ‘disclosure of relevant information (whether before or after the date of the passing of the Act) made by a worker in the manner specified’.

o Section 5(2) of the Protected Disclosures Act states that ‘relevant information’ includes if:

In the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

It came to the attention of the worker in a work-related context

o Section 5(3) of the Act sets out relevant wrongdoings, specifically:

o Section 5(3)(d) ‘That the health or safety of any individual has been, is being or is likely to be endangered’.

o Our client has raised a protected disclosure relating to the health and safety risks posed to her.

o Section 5(7) states that the motivation for making a disclosure is irrelevant as to whether or not it is a protected disclosure.

o Section 5(8) states that in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

· Our office set out the relevant case law in support of this rebuttal, such as Baranya v Rosderra Irish Meats [2021] IESC 77.

o We advised that we were forced to raise a claim bearing CA-00060671 for penalisation arising from a protected disclosure in the WRC, in response to their refusal to accept our communication as a protected disclosure.

o We noted that our client’s grievance had not been advanced since being raised on 27 June 2023.

· On the 21 December 2023 our office wrote to the Respondent. Our office outlined:

o We welcomed the new ergonomic assessment. We requested that a suitably qualified person carried out the investigation.

o We sought for a new suitable chair to be bought in advance of our client’s return.

o We directed the Respondent to the HR Circular 0013a/2017 replacing HR Circular 013/2017 re Injury at Work Allowance.

o We sought an update from the respondent in respect of our clients CIP application, which was raised to Senior Management 2 months prior to our response.

o We advised the Respondent that we filed a claim bearing CA-00060671in respect of their failure to make reasonable accommodations for a disability and non-payment of wage.

o We insisted that the question as to whether our client is a qualified nurse to be immediately dealt with, and that the respondent was not in the position to undermine our client’s security and position in respect of that issue.

o We highlighted the fact that our client had raised a protected disclosure and grievance and have filed a claim bearing CA-00060671 for penalisation due to a protected disclosure, which had at that stage not been investigated.

o We emphasised that the stress of battling with the respondent in respect of the above issues has caused further medical challenges for our client and that these matters should be dealt with in a timely manner as to allow our client to return to work as soon as possible. – The return is health and work related.

· On 10 January 2024 Ms Grey wrote to our office.

o Ms Grey further noted the Respondent did not accept our letter of 21 December 2021 as a protected disclosure.

o On 12 April 2024, Ms Gourley contacted the Complainant by phone.

o Ms Gourley advised that on foot of the Complaint’s most recent occupational health assessment of 12 February 2024 a CIP recommendation would be acquired.

Legal Submission of the Complainant.

Legal Submissions on Penalisation

· Section 12(1) of the Protected Disclosures Act 2014 states the following:

‘An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure’.

· Section 2 of the 2014 Act defines ‘penalisation’ as follows:

Any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes –

o Suspension, lay-off or dismissal,

o Demotion, loss of opportunity for promotion or withholding of promotion.

o Transfer of duties, change of location of place of work, reduction in wages or change in working hours,

o The imposition of administering of any discipline, reprimand or other penalty (including a financial penalty),

o Coercion, intimidation, harassment, or ostracism,

o Discrimination, disadvantage, or unfair treatment,

o Injury, damage, or loss,

o Threat or reprisal,

o Withholding of training,

o A negative performance assessment or employment reference,

o Failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

o Failure to renew or early termination of a temporary employment contract,

o Harm, including to a worker’s reputation, particularly in social media, or financial loss, including of business or loss of income,

o Blacklisting on the basis of a sector or industry wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

o Early termination or cancellation of a contract for goods or services,

o Cancellation of a licence or permit, and,

o Psychiatric or medical referrals

· According to Section 12(7C), ‘the penalisation shall be deemed, for the purpose of this section, to have been as a result of the employee having made a protected disclosure. Unless the employer proves that the act or omission concerned was based on duly justified grounds’.

· It is submitted that a protected disclosure was opened as a result of the penalisation of the Complainant by Ms Comisky and Ms Varghese in the following ways:

o The frequent mis-recording of absences resulting in increased financial loss to our client.

o The refusal of annual leave requests by reason that our client was ill while simultaneously informing our client that she was fit to return to work.

o The changing of rosters without notice and removal of premium pay days from our client.

o The enquires made to Human Resources regarding disciplinary procedures for absenteeism on the 24 November 2021 while Ms Robinson had Covid 19 and was out of work as per HSE guidelines. This is penalisation.

o The sharing of Ms Robinson’s private medical information internally and with union without prior consent.

o The removal of Ms Robinson’s reasonable accommodations without prior notice and continued refusal to re-instate the accommodations following the end of construction work without any justifiable reason.

o Ms Comiskey and Ms Varghese raised concerns regarding our client’s qualifications after she had been carrying out the role for over eight years. This issue was only raised after our client raised issue with the removal of her reasonable accommodations. This suggests our client was penalised for raising concerns of her safety in the workplace.

o Ms Robinson was told that she would be reduced to half pay under the terms of the Sick Pay Scheme from the 24 January 2022 if she did not return to work.

o Our client applied for Critical Illness Protocol Payment and was denied.

· It is submitted that as per Section 12(7C) of the Protected Disclosures Act 2014, the acts detailed above are presumed to constitute penalisation on foot of the Complainant’s protected disclosure, and the burden rests on the Respondent to rebut this presumption.

Legal Submissions on Protected Disclosure

Protected Disclosure

· Section 5(1) of the Protected Disclosures Act 2014 defines a ‘protected disclosure’ as a ‘disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified’.

· For the purposes of the 2014 Act, information is ‘relevant information’ as per Section 5(2) if –

a) In the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

b) It came to the attention of the worker in a work-related context

· The Act defines the following as relevant wrongdoings (Section 5(3)).

a) That an offence has been, is being or is likely to be committed,

b) That a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services

c) That a miscarriage of justice has occurred, is occurring or is likely to occur,

d) That the health or safety of any individual has been, is being or is likely to be endangered,

e) That the environment has been, is being or is likely to be damaged

f) That an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur

g) That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement

h) That information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

· Section 5(7) states that the motivation for making a disclosure is irrelevant as to whether or not it is a protected disclosure.

· Section 5(8) states that in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

· The Complainant made a protected disclosure regarding the breach of her rights to fair procedures and the use of the disciplinary procedure to bully and belittle the Complainant on the 25 January 2023 in breach of Statutory Instrument No 146 of 2000 – the Industrial Relations Act 1990 (Code of Practice of Grievance and Disciplinary Procedures) (Declaration) Order 2000.

· The matter was canvassed in ADJ 00043225 enclosed A Worker -v- A Massage Therapy Businesswhere it was set out that

Applicable Law

The Definition of Protected Disclosure

Section 5 of the Protected Disclosures Act 2014 (prior to the 2022 Amendment Act) provides:

‘A protected disclosure is a disclosure of “Relevant Information”.’

Subsection (2) states that ‘For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.’

Relevant Wrongdoing is dealt with in subsection (3), (4) and (8) (pre amendment) where relevant, as follows:

‘The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

…

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

…

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.’

Section 6. (1) Provides (where relevant) that ‘A disclosure is made in the manner specified in this section if the worker makes it— to the worker’s employer…’

Penalisation is prohibited by Section 12 (1) as follows:

(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit another person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

“penalisation” as it was defined prior to the amendment of the Act in 2022 (which took effect in January2023 and broadened the scope of the definition):

“means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

Compensation for breach of Section 12 (1) is governed by Schedule 2 of the Act. Unfair dismissal claims are not included - as per Section 12 (2) - but the present claim relates to penalisation other than dismissal and thus Schedule 2 is applicable to the present claim. Schedule 2 empowers an adjudicator to require an employer to pay such compensation as he/she “considers just and equitable having regard to all the circumstances”.

It is clear that the legislative intention behind the Protected Disclosures Act 2014 was to afford a very high degree of protection to persons making protected disclosures, which protection was in part expressed by the conferral on an adjudication officer of an extended compensation-award jurisdiction. Schedule 2 of the Act empowers an adjudicator to require an employer to pay such compensation as he/she “considers just and equitable having regard to all the circumstances”. That term is not defined in the Act.

Some guidance is available from the jurisprudence of the CJEU (formerly the ECJ) which has held that where a fundamental social right has been breached, national law must provide an effective, proportionate or dissuasive remedy. In Cementation Skanska (formerly Kvaerner Cementation) Ltd v Carroll, DWT 0338, the Labour Court, considering the right to annual leave stated:

“The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law…In Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.”

· The Court of Appeal of England and Wales held in Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, held that the disclosure must be of ‘sufficient factual context and specificity such as is capable of tending to show one of the matters listed in the subsection’ and that this will be a matter for the tribunal in light of all the facts of the case.

· The approach in Kilraine was endorsed by Hogan J in the Supreme Court case of Baranya v Rosderra Irish Meats [2021] IESC 77. The Supreme Court held that so long as the disclosure contains information tending to show a relevant wrongdoing, ‘however basic, pithy or concise’ it will be sufficient to constitute a protected disclosure.

· In Barrett v Commissioner for An Garda Síochána and Minister for Justice [2022] IEHC 86, the High Court held that there is no absolute requirement to invoke the language of the Act, as this would undermine the purpose of the Act.

· At Paragraph 30 of the judgment, the Supreme Court examined the differences between a protected disclosure and a grievance and set out the following:

‘A grievance is a matter specific to the worker, that is, that worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation’s grievance procedure. A protected disclosure is where a worker has information about a relevant wrongdoing’.

· The Supreme Court in Baranya emphasised that the 2014 Act does not distinguish between a personal grievance and a protected disclosure, and that a disclosure in relation to the health and safety of employees can relate to the complainant’s own health and safety. The result of Baranya is that they will be treated as concurrent complaints.

· The Complainant raised a protected disclosure in respect of:

o Her accommodations being removed in June 2021 without prior consultation, an ergonomic assessment of the proposed new workplace, or an occupational health assessment.

o Why Ms Robinson was not permitted to simply return to her original individual office space following the end of construction works.

o Why senior management were involved and had direct input in the creation of the Ergonomic Assessment report. The report should have been carried out independently.

· The behaviours of Ms Comiskey and Ms Varghese in the handling of our client’s issues were unprofessional and demonstrate a bias against our client. This matter is further dealt with in respect of penalisation.

Pay

· Section 6 of the Payment of Wages Act 1991 provides that:

Where—

The complaint is well-founded in regard to the hole or part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—


		(a) the net amount of the wages (after the making of any lawful deduction therefrom) that—
		(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or
		(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, · Ms Robinson was removed from the Sunday roster which attracted premium pay. · Ms Robinson was threatened that a review of her salary payments was being carried out which may possibly result in a salary adjustment. · Ms Robinson was told that illness following a Covid vaccination did not qualify for Special Leave with pay. · Ms Robinson was told that she would be reduced to half pay under the terms of the Sick Pay Scheme from the 24 January 2022 if she did not return to work. · Our client applied for Critical Illness Protocol Payment and was denied. Discrimination / Equality / Equal status · Specifically in relation to the Employment Equality Acts and to the complainant’s claims pursuant to section 6 which states: - (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, (b) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of these grounds for the purposes of this Act) are— (g) that one is a person with a disability and the other is not or is a person with a different disability (in this Act referred to as “the disability ground”). · As outlined above, the complainant contends that her chronic pain syndrome has allowed for her to be penalised and therefore discriminated as a result of that disability. · Reasonable accommodations existed for the Complainant before Simone Comiskey was appointed director of Nursing in St Mary’s Hospital and Ms Ligimol Varghese was appointed Assistant Director of Nursing in 2018. · The Complainant highlighted on several occasions that she was not being facilitated for in the same way as her colleagues in respect of annual leave requests. · The sit-to-stand desk which was purchased as a result of the Complainants ergonomic assessment was not reserved for the Complainant’s specific use. It was accessible to all staff members. Burden of proof Comparators · To succeed under section 6(2)(g) the complainant must show a comparator. · Reasonable accommodations existed for the Complainant before Simone Comiskey was appointed director of Nursing in St Mary’s Hospital and Ms Ligimol Varghese was appointed Assistant Director of Nursing in 2018. · The Complainant highlighted on several occasions that she was not being facilitated for in the same way as her colleagues in respect of annual leave requests. · The sit-to-stand desk which was purchased as a result of the Complainants ergonomic assessment was not reserved for the Complainant’s specific use. It was accessible to all staff members. Conclusion · For all these reasons, we ask the Adjudicator to uphold the claims. · The Complainant reserves the right to adduce further evidence at the hearing.

Summary of Respondent’s Case:

Introduction.

· The complainant Ms Yvette Robinsonsubmitted a complaint to the Workplace Relations Commission received by them on the 21 December 2023.The complainant claims that she has been penalised or threatened with penalisation for having made a protected disclosure contrary to the Protected Disclosures Act 2014; that the HSE have victimised and discriminated against her due to her disability by not providing reasonable accommodation contrary to the Employment Equality Act 1998; that the HSE have not paid her the correct sick leave payments due to her contrary to the Payment of Wages Act 1991.

· The HSE reject these complaints. The complainant submitted a letter dated 27 June 2023 via her legal representative to the HR Manager - Social Care, Dublin North City and County based at St Mary’s Hospital, Phoenix Park, Dublin and this correspondence was submitted as a Protected Disclosure. There are a number of matters ongoing since 2021 in relation to the complainant’s absence from the workplace, her sick leave and accommodations she requires. It is the complainant’s contention that the actions carried out by management in relation to those matters constitute penalisation. The complainant has been absent from the workplace since June 2021 and to date has not returned to duty; she has only attended the workplace for meetings and an ergonomic assessment. Any penalisation alleged to have taken place by an employer must be as a direct result of an employee submitting a protected disclosure. Given that the protected disclosure was submitted on 27 June 2023 any actions referred to prior to this date cannot be deemed to constitute penalisation. Any actions taken after this date are denied as being anything but supporting the complainant on her period of absence and in no way constitute penalisation. Notwithstanding that, management submitted the complainant’s letter of 27 June 2023 to HSE’s designated Protected Disclosures Unit for appropriate assessment. That assessment deemed the complaint not to be a protected disclosure, further supporting management’s defence that penalisation did not occur.

· The claim that the complainant has been victimised and discriminated against as a result of her disability is entirely refuted. The complainant has at all times been provided with all reasonable accommodations required by her, as advised to management by Occupational Health, in full compliance with management’s legal obligations. The allegation of victimisation is without any substance or foundation.

· In relation to the claim that the complainant has not been paid her appropriate sick leave in accordance with the Critical Illness Protocol, it is a fact that there was no agreement to pay the complainant in line with this scheme. She did not meet the criteria for same and while management were in discussions with the complainant’s trade union regarding a number of matters, to include the application of this scheme, those discussions did not progress as the trade union were no longer representing the complainant and discussions ceased. No agreement was ever made in relation to the payment of this scheme.

PRELIMINARY ISSUE

· The complaint as submitted under the Employment Equality Act 1998 is out of time. The WRC referral details the most recent date of discrimination as 1 July 2023 however, the complainant has been absent on continuous sick leave since 13 November 2021 and all issues pertaining to the alleged discrimination on the grounds of her disability occurred prior to this. It should also be noted her period of sick leave since November 2021 is due to another illness, not her disability, and she has been unfit for work since that date. There can be no contention that the last date of discrimination is 1 July 2023 for the reasons as set out and which are further detailed in this submission. Management contend that the cognisable period for the alleged discrimination is June to November 2021 and in that context the complaint is out of time.

· The complaint as submitted under the Payment of Wages Act 1991 is also out of time. The WRC referral sets out that the complaint’s date for payment of a scheme was 1 July 2023. This is inaccurate; there was no agreement to pay any form of payment to the complainant which is detailed further within this submission, she was advised she was not eligible for the scheme. Notwithstanding this point, any discussions relating to the scheme in question took place during late 2022, early 2023 therefore, any complaint relating to the breach of the Act should have been made within 6 months beginning on the date of the contravention to which the complaint relates and in that regard, the complaint is out of time.

BACKGROUND

· The complainant is employed as a Clinical Nurse Manager 2 at St Mary’s Hospital, Phoenix Park, Dublin since 25 February 2013.

· Prior to commencing in this role, the complainant was assessed by the HSE’s Occupational Health Department based at Connolly Hospital. That report dated 31 January 2013 advised that the complainant had existing neck and back problems which, at that time, were under control. The report further advised that the complainant should be accommodated with a nursing administration role and more specifically that she did not lift, push, pull any object greater than 5kg and did not stoop or bend excessively.

· The complainant was accommodated with an administrative nursing role which did not have any requirement for her to work at ward level. Initially she was responsible for a particular unit, Cuan Aoibheann, a residential unit for clients with special needs. The office the complainant occupied was approximately 700m away from Cuan Aoibheann. She was provided with all required equipment following an ergonomic assessment to include a static desk and a specific office chair which was sourced specially to suit the complainant’s requirements. When Cuan Aoibheann closed in 2019 the complainant commenced working in nursing administration but remained in the same office, nothing changed except her duties. This office was primarily used by the site managers and the complainant. The complainant worked from her own desk for the majority of her time but it was a common practice for her to work from a shared desk when doing handovers.

· In July 2020 the complainant was referred to Occupational Health due to some periods of frequent absences. A report dated 22 July 2020 from the Occupational Health Physician advised that the complainant was fit for all duties and also recommended that going forward she would benefit from a sit-to-stand desk as opposed to the static desk. He reiterated the existing accommodations in place in terms of lifting, pushing, pulling, stooping and bending be continued and did not arrange to review the complainant again. Management duly purchased the required desk and continued to ensure all accommodations were provided to the complainant.

· In May 2021 management informed staff via email of upcoming essential building works which were necessary for compliance with fire and building regulations. These works were temporary but necessitated the complainant relocating to another office while the building works were carried out on the office she occupied. The sit-to-stand desk, the complainant’s chair and other essential equipment the complainant used were moved to the temporary office on 27 May 2021. The temporary office was set up for the complainant in the same manner as her usual office to ensure her accommodations were still in place.

· The complainant attended for work on 29 and 30 May 2021. From 1 to 9 June 2021 the complainant was on certified sick leave for a planned procedure. When she returned to duty, the complainant worked on 12 and 13 June 2021 in the temporary office where she did not raise any concerns. On 15 June 2021 the Director of Nursing, Ms Comiskey, contacted the complainant in relation to the opening of a new ward, Tory Ward. Ms Comiskey requested the complainant meet with Ms Birmingham, Facilities Operations Manager in order to complete the necessary requirements for the opening of the new ward. At this time the complainant advised Ms Comiskey that her back was not in a good way, she raised a new issue that moving and twisting her back was a problem. This was the fifth day that the complainant had worked in the temporary office. Ms Comiskey advised the complainant that if she was unwell she should go home and avail of sick leave. She also advised the complainant to locate to a more suitable office space if necessary and advise what she, the complainant, required to meet her needs. The complainant reported that she needed to take annual leave on that day and the following day however despite notifying Ms Comiskey of her issues and request for annual leave, she continued to work on both days.

· When the complainant reported her issues to Ms Comiskey on 15 June 2021, she stated that the flooring in the temporary office was an issue. The temporary office had carpet whereas her usual office had lino. This was the first time management were made aware of the need for particular flooring type. When the complainant commenced in 2013 the initial ergonomic assessment had been completed in an office which had a carpeted floor and there was nothing identified which required any adaptions on the floor. The complainant had worked in this office for 4 years with a carpet before it was changed to lino. Based on this information, on 16 June 2021 Ms Brenda Carroll, Operations Manager, who had significant expertise in Quality and Safety, reviewed the complainant’s workstation and set up at Ms Comiskey’s request. Ms Carroll advised the complainant to keep her books in a suitable position and advised management to provide a mat which would assist in moving the chair in the office. The complainant chose a specific mat from a catalogue which she identified as suiting her needs and this mat was provided to the complainant. On 18 and 22 June 2021 the complainant was on sick leave but presented for duty on 23 June 2021. She went home during her shift and self-reported that this was due to exacerbation of neck and back pain related to her new office set up. On 25 June 2021 management were given clearance by the construction team that the office was now ready for use and with the assistance of the porters on duty, the complainant moved back to the original office on 26 June 2021. She worked on 26 and 27 June 2021 and went on sick leave on 29 June 2021. The complainant was absent on periods of sick leave, annual leave and rest day from this date until November 2021 when she commenced long term sick leave due to covid and to date remains unfit for duty.

· During this absence, management were in constant communication with the complainant and had discussed a referral to Occupational Health. The complainant advised it was not necessary as she had already self-referred to Occupational Health and consented to the report being shared with management. In this report the Occupational Health Physician advised that the complainant should continue to use the ergonomically assessed work station she had been using in order to manage her complex back condition while at work. The report further advised that it was a potential exacerbation factor for the complainant’s back problem to move her wheeled chair on carpet. The report confirmed the complainant was fit to return to work. This report was completed on 26 July 2021 and received by management on 5 August 2021. There was no recommendation in this report that another ergonomic assessment be carried out.

· Following receipt of the Occupational Health report management wrote to the complainant by letter dated 6 August 2021. This letter from the Director of Nursing, Ms Simone Comiskey, confirmed the opinion of Occupational Health and requested the complainant contact Ms Ligimol Varghese, Assistant Director of Nursing to discuss her return to work.

· On receipt of this letter the complainant duly made contact with Ms Varghese where she requested an ergonomic assessment be conducted. Ms Varghese agreed to link in with Occupational Health and source a qualified professional to carry out a desk assessment for the complainant. The complainant had requested this re-assessment of her work station to ensure her safe return to work. Ms Varghese arranged this assessment and it was scheduled to take place on 20 August 2021.

· Ms Noelle Hamilton, INMO wrote to Ms Comiskey on behalf of the complainant by letter dated 27 August 2021. Ms Hamilton referenced the background to the current position of the complainant since she commenced sick leave and advised that the ergonomic assessment had taken place as scheduled on 20 August 2021 where the report was pending. She asked that the matter be resolved urgently to allow the complainant return to work as she had been deemed fit to return by Occupational Health on 26 July 2021.

· Ms Comiskey responded to Ms Hamilton by letter dated 10 September 2021. Ms Comiskey referenced the meeting which had taken place with the complainant, Ms Hamilton and management on 1 September 2021 to discuss the issues as raised by the complainant. Ms Comiskey acknowledged that the complainant was disappointed where she felt management had not considered her needs in the context of the essential building works being carried out. However, Ms Comiskey assured that these works were scheduled and the complainant, as well as her colleagues, were given notice of the commencement of the works and the planned move for the intervening period. Ms Comiskey noted that the complainant had recorded this notification in the works diary on 25 May 2021. Ms Comiskey committed to provide all reasonable accommodation to the complainant and confirmed that at all times, management had complied with Occupational Health advice in this regard. Ms Comiskey concluded that she understood the complainant was due to resume duty on 15 September 2021 and she was happy to meet to discuss any outstanding matters at that time.

· The complainant did not return to work as scheduled on 15 September 2021 and applied for emergency annual leave in a text message to Ms Comiskey. The following day, 16 September 2021, the complainant sent an email to Ms Comiskey and outlined that she understood from Ms Hamilton that the office space being made available to her was the office which had been ergonomically assessed on 20 August 2021. She advised that she had attended the hospital site that day to review that office in advance of returning to duty and she had a difficulty with the office for number of reasons:

· The office chair provided for the complainant had been damaged in her absence and was not providing the required support;

· The plastic mat placed on the carpet was not assisting with ease to move her chair and was causing a strain to her lower back; (this mat had been placed in order to comply with the accommodations required regarding the flooring in that office)

· While acknowledging the efforts of management, the complainant was of the view placing her in another office would have an increased physical demand;

· She felt she would be operationally disadvantaged attempting to work from two offices.

· The complainant requested that her desk space be solely for her use and not shared by a number of staff. She also requested that she be permitted to return to her original office despite it now having a shared function in that it was being used to hold daily handover meetings for the multi-disciplinary team. It was the opinion of the complainant that the office was large enough to hold three desks and in that regard the office was large enough to accommodate her desk in addition to the shared desk and the handover meetings.

· It is noteworthy to point out the situation regarding the complainant’s original office which had undergone some building works; the office was a large space which had two sit-to-stand desks. One desk was a shared desk for all other site managers to use including the complainant during handovers and the second sit-to-stand desk was solely for the complainant’s use. However, when the renovations were complete and at that time of the complainant’s email to Ms Comiskey in September 2021, the covid pandemic was still prevalent and staff were expected to maintain social distancing. This office had always been used for daily handover meetings between the site managers. A decision was made to hold the daily “safety huddles” in that office and a handover board was placed there for that purpose. This decision was primarily made in the interest of staff given the ongoing covid pandemic, social distancing etc and also patient safety. The handover meetings were attended by Consultants, Bed Managers and Nurse Managers. The office was sufficient in size to hold those meetings twice a day where it provided a safe environment for the staff attending and allowed for quick decisions to be made. As a result of this a meeting table and chairs had to be placed in the office thereby only allowing one sit-to-stand desk. If the complainant had returned to her original office, she would have been present in the office during these meetings and would have been partaking in same. The complainant had been given the option of working from this office which had the sit-to-stand desk and the space to accommodate her specific chair. At a time only one site manager would be on site so the complainant would have been the only person working from this office except during handover times and during “safety huddles” which the complainant was expected to attend. However, the complainant refused the option to work off the sit-to-stand desk which was similar to her own as other staff had access to it when she was absent. As a result, management proposed a new office space for the complainant which was 30 metres away from the shared office. They also changed the flooring in that office from carpet to ensure there was no issue with the movement of the complainant’s chair.

· Following receipt of that email Ms Comiskey sent an email dated 21 September 2021 to Ms Robinson and Ms Hamilton. In that correspondence Ms Comiskey reiterated management’s commitments to providing the reasonable accommodations for the complainant and were also focused on her health and safety in the workplace. Ms Comiskey confirmed she had sight of the draft ergonomic assessment of August which identified a number of small adjustments required to the complainant’s workstation as well as a replacement chair given the original one was faulty. Ms Comiskey confirmed that the alternative chair could be provided immediately and the other small adjustments required would not require the complainant to remain out of work. Ms Comiskey also referred to the complainant’s request to work from home and set out her reasons for not granting this request; Ms Comiskey had concerns about the home environment being safe given the complainant’s medical condition. She asked that the complainant make contact with Ms Varghese to discuss her return and committed to accommodate any leave for the complainant for any shifts she had not worked.

· A meeting took place between Ms Comiskey, the complainant and Ms Hamilton on 1 October 2021 to discuss the ongoing issues. Ms Comiskey wrote to the complainant on 5 October 2021 setting out a summary of what had been discussed and agreed at that meeting. The summary was as follows:

· The issue of the broken chair; the chair was being replaced, of note on the day of the assessment in August 2021 the broken chair was not notified to management who could have started the procurement process at that stage. Ms Comiskey confirmed that the assessor had advised that it was not a requirement for the complainant to remain off work whilst awaiting a new chair, the report clarified the chair available in the Night Office could be shared between users. The complainant had reservations about this but Ms Comiskey confirmed that to adjust the chair specifically to the complainant’s requirements, staff on site could assist the complainant with this. This was a temporary measure while awaiting delivery of a new chair;

· It was agreed the complainant would be afforded 3 days, 4,5 and 6 October 2021 to seek out necessary equipment and following this she was required to report on site or alternatively apply for leave should she not wish to return to work;

· Leave from work: Clarification was set out in relation to periods of leave for the complainant. Ms Comiskey reiterated management’s concerns during recent periods of absence where the complainant did not report to her line manager in accordance with the appropriate policy. Specifically, the complainant was rostered for duty on 17 and 18 September 2021 but did not attend work nor make contact with management and further did not account for this absence until her meeting with management on 1 October 2021;

· Ms Comiskey also referred to other dates and her email of 21 September 2021 where she advised she was willing to accommodate the complainant with leave for any shifts not worked and she noted there was no response to same. Ms Comiskey sought clarification on the leave options the complainant wished to avail of and her salary would be adjusted to accurately reflect that leave;

· Nursing Qualifications: Ms Comiskey confirmed that a separate discussion had taken place in relation to the complainant’s qualifications and that it had come to the attention of management that the complainant registration was not in general nursing but in children’s and intellectual disability nursing. It was agreed at the meeting that a separate meeting would be scheduled the following week specifically to discuss this issue and identify a pathway forward.

· Ms Comiskey concluded her letter by setting out that the complainant had confirmed she was reporting back to duty effective from 1 October 2021 and Ms Comiskey advised that she link in directly with Ms Varghese to ensure appropriate tasks and shifts were assigned to her. She confirmed her ongoing support and assistance to the complainant.

· Ms Hamilton responded to this letter on 7 October 2021 where she set out three different concerns following their meeting of 1 October 2021:

· The ergonomic assessment raised concerns for the complainant and in order for her to return to work safely that report would need to be implemented in full. It was agreed at the meeting that the complainant would source this equipment and ensure it was in place prior to her return. It was confirmed the complainant was sourcing same and had arranged appointments to attend to this;

· The second issue was in relation to allocation of leave for the period since the complainant had been deemed fit to return to work and given no agreement was reached, it was their intention to refer the matter to a third party;

· The third issue was in relation to the nursing qualification of the complainant in compliance with HIQA standards; Ms Hamilton sought a copy of these standards.

· On 22 October 2021 the complainant applied directly to Ms Comiskey to avail of the Shorter Working Year Scheme for set dates in July 2022. On 28 October 2021 Ms Comiskey replied where she advised that the application had not been approved as the summer months and peak times could not be facilitated for any member of staff. Ms Comiskey advised that if the complainant wished to apply for dates outside of peak times (set out on letter) she would review same and she also drew the complainant’s attention to the closing date for this scheme.

· By letter dated 4 November 2021 (sent via email) Ms Comiskey advised the complainant that all recommended equipment was now sourced and in place. This equipment included a specific chair, footrest and writing platform as well as other accessory items recommended in the ergonomic report. The letter also went into detail about the issue regarding the complainant’s nursing registration where Ms Comiskey advised the matter could be dealt with at a separate meeting. Ms Comiskey noted the complainant’s roster for the following week and asked that the complainant contact Ms Varghese on the morning of her return to work. The complainant went on sick leave from 13 November 2021 until 21 November 2021 citing work related stress. She then unfortunately contracted covid 19 and has remained unfit for work since 21 November 2021 due to her ongoing symptoms relating to same. She is under the review of Occupational Health and her most recent review in February 2024 has confirmed she is still unfit for duty. She is due to be reviewed in late May 2024 by Occupational Health.

· On 27 June 2023 Setanta Solicitors issued a letter on behalf of the complainant to Ms Karen Fagan, HR Manager - Social Care, Dublin North City and County. This letter set out a background to the complainant’s case and their view on the current position. The summarisation of the correspondence confirmed that the complainant wished to invoke a formal grievance in relation to a number of issues; ergonomic assessment, return to the original office space, behaviours of Ms Comiskey and Ms Varghese, refusal of leave requests, changing of rosters, reasonable accommodation, enquiries to Human Resources regarding disciplinary procedures for absenteeism and the issue regarding the complainant’s qualifications. The letter at 4.8 states

“It is our considered view that the above constitutes penalisation under the Protected Disclosures Act and you may take this communication as Protected Disclosure under Section 5 of the protected disclosures act [sic].”

The letter also requested that an investigation commence into behaviours as previously set out at frequent mis-recording of absences and other most serious allegations against management such as endangering the complainant’s health and safety, manipulation and interference with the independent ergonomic assessment, sharing of private medical data, denial of contractual obligations, interrogating qualifications which is not the role of management and appeared to be penalisation/victimisation and denial of engagement which constituted bullying/harassment/victimisation.

· Ms Fagan acknowledged receipt of this letter by email on 29 June 2023 where she advised the letter had been sent to Senior Nurse Management for their attention which was the appropriate pathway.

· On 20 July 2023 Ms Caroline Gourley, now Director of Nursing for the area, wrote to Setanta Solicitors where she apologised for the delay in responding, this was due to her being on leave. She requested confirmation if she could take the letter of 27 June 2023 as the complainant’s formal grievance. She also sought confirmation if the complainant sought to use the services of her trade union to represent her at her grievance hearing as per the Grievance Procedure. She confirmed she would arrange to hear the grievance once she had those details confirmed. She also dealt with the separate issue of the protected disclosure and advised that in accordance with the procedure she had referred the matter to the Protected Disclosure office for appropriate screening.

· Setanta Solicitors responded on 21 July 2023 to confirm the letter of 27 June 2023 outlined the complainant’s grievance. They also confirmed that the complainant would not be utilising the services of her trade union and any correspondence should now issue directly to their office.

· On 31 July 2023 Mr Gary Russell, General Manager, National Office for Protected Disclosures advised Ms Gourley via email that the letter as submitted was not determined to be a protected disclosure due to the nature of the allegations. Mr Russell confirmed he had duly advised the complainant’s solicitor formally of same and had referred the matter to the Chief Officer for the area for consideration outside of the protected disclosure framework.

· The grievance hearing at Stage 1 of the procedure was scheduled for 31 August 2023, dates prior to this were not suitable as Ms Gourley was on annual leave. The complainant was accompanied by her solicitor which is outside of procedure, however, this was facilitated by Ms Gourley as a concession to the complainant.

· Ms Gourley issued her formal decision on 9 October 2023 which dealt comprehensively with all aspects of the grievance.

· Ergonomic Assessment: Given the complainant’s continued dissatisfaction with a number of issues in the previous process, Ms Gourley agreed to commission a new ergonomic assessment. Ms Gourley was conscious of the complainant’s current ability to engage in the process due to her ongoing medical issues and offered to delay this until such time as the complainant’s health improved;

· Recommended Equipment: Ms Gourley noted the equipment that had been recommended in 2021 and confirmed all items had been sourced. Since that time unfortunately the chair sourced could not be located but Ms Gourley committed to ordering another one and asked if the complainant wished to order the same chair as was purchased in 2021 or await the outcome of the new ergonomic assessment before deciding on same;

· Office Location: Ms Gourley restated the issue in relation to building works and acknowledged that the complainant had sought at the hearing to return to that particular office. Ms Gourley confirmed she was agreeable to relocating the complainant back to that office and it could be reviewed in terms of any accommodations she required. She also reassured the complainant that management were continuing to adhere to public health guidance as it related to virus outbreak and particularly covid given there were concerns for the complainant as she was experiencing long covid;

· Leave: Ms Gourley committed to examine specific periods of time with a view to finding an agreeable resolution;

· Critical Illness Protocol: The previous application for this scheme had not been approved and at that time the complainant had been advised of her right to raise a grievance. Ms Gourley referred to the fact that at the time the complainant’s trade union representative had contacted senior management in relation to this. Ms Gourley advised that she would raise this again at senior level;

· Nursing Qualification: Ms Gourley set out that the complainant was not registered in the appropriate division of the Nursing and Midwifery Board of Ireland (NMBI). She gave assurances to the complainant and referred to previous assurances from management by letter dated 4 November 2021; that the complainant would retain her normal roster pending discussions and Ms Gourley confirmed she was committed to working with the complainant to find a satisfactory solution for all concerned.

· Ms Gourley concluded her decision by setting out the nominated person’s details to appeal her decision to at Stage 2 of the procedure should the complainant not be satisfied with same.

· The complainant did not appeal Ms Gourley’s decision in accordance with the procedure. However, two months later Setanta Solicitors wrote again to Ms Gourley by letter dated 21 December 2023 where they referred to the decisions as taken by Ms Gourley. The letter advised that they had now referred the case to the WRC and advised that if the provisions they requested in the letter were made, the claim to the WRC would be withdrawn.

Management’s Position

· There is significant information contained in the referral by the complainant to the WRC however, the complaint centres on three claims and they will be dealt individually and specifically as referred.

Complaint of penalisation pursuant to the Protected Disclosures Act 2014

· Section 5(1) of the Protected Disclosures Act 201 (PDA) provides that a protected disclosure refers to a disclosure of “relevant information” made by the worker. Section 5(2) provides that information is “relevant information” if (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in a work-related context.

· The complainant has alleged that she has been penalised in contravention of the Act. The first reference to a protected disclosure by the complainant is in the letter from her solicitor, Setanta Landers, dated 27 June 2023. (see appendix 14) It is the contention of the complainant that the actions allegedly carried out by management in relation to reasonable accommodation, the ergonomic assessment, recording of absences, refusal of leave requests, changing of rosters, sharing of medical information, enquiries to Human Resources regarding disciplinary procedures for absenteeism and concerns regarding the complainant’s nursing qualifications constitute penalisation under the Protected Disclosures Act. The correspondence dated 27 June 2023 further confirmed that the letter should be taken as a Protected Disclosure under Section 5 of the Act.

· Penalisation means any act or omission that affects a worker to the worker’s detriment and includes disciplining the worker. There must be a connection between the communication and the event or treatment said to constitute penalisation. The alleged negative treatment has to be as a direct result of the employee having made a protected disclosure. In this case, there are a number of facts which are significant to refute the claim that penalisation has occurred. The most important fact is that the protected disclosure was submitted by the complainant on 27 June 2023 and it was managed in accordance with the HSE’s procedures for same whereby the Director of Nursing, Ms Caroline Gourley forwarded the letter of protected disclosure to the Protected Disclosures Unit for appropriate action. In order to show that she has been subjected to penalisation as a result of that disclosure, the complainant has to identify the negative treatment she endured following her making this protected disclosure i.e. from 27 June 2023 onwards. It is a fact that all the alleged events referred to by the complainant, said to constitute penalisation, had been carried out prior to the lodging of the protected disclosure. Therefore, any alleged negative treatment cannot be deemed to be a direct connection to the disclosure being made as those alleged actions pre-date the protected disclosure. Management also refute the assertion that any of the actions prior to or indeed after this date were in any way negative towards the complainant.

· Notwithstanding the point above, the letter of protected disclosure was, as stated, forwarded to the Protected Disclosures Unit for assessment. The outcome advised that the letter had been assessed against the criteria under the Protected Disclosures Act 2014 and been determined not to meet the requirements to be considered a protected disclosure. The reason for this determination was that the letter of 27 June 2023 made allegations that amounted to complaints against the employer that concern the reporting person exclusively. Such matters are specifically excluded for consideration under the Act. As the complaint was not determined to be a protected disclosure, it further supports management’s position that no penalisation took place as the complaint was not a protected disclosure.

Complaint pursuant to the Payment of Wages Act 1991

· The complaint as lodged by the complainant is that “it was agreed that CIP would be paid to me in June 2023. That has never been paid. The total is €5,365 per month and which loss is continuing.”

· The complainant’s sick leave was paid in accordance with the HSE’s sick pay scheme. This scheme provides an employee with 92 days at full rate and 91 days at half rate in a rolling 4 year period. The Critical Illness Scheme (CIP) is available to employees which extends the standard entitlement to 183 days at full rate and 182 days at half rate in a rolling 4 year period. This scheme is granted in exceptional circumstances where the employee meets the criteria for same. In order to be eligible for the scheme an employee’s medical condition must have at least one of the following characteristics:

a) Acute life threatening physical illness;

b) Chronic progressive illness, with well-established potential to reduce life expectancy;

c) Major physical trauma ordinarily requiring corrective acute operative surgical treatment;

d) In-patient or day hospital care of ten consecutive days or greater.

· When the complainant exhausted her standard sick leave entitlements, her union representative made enquiries on her behalf about applying for the CIP scheme where she was informed that the complainant did not meet the criteria for same. The representative was advised at that time that the complainant could invoke the HSE’s Grievance Procedure if she sought to have any complaint heard in relation to the application of the scheme. The complainant did invoke a grievance however, the decision at stage 1 of the procedure did not uphold the complaint for the reasons that she did not meet the criteria for the scheme and she was advised of her right to appeal that decision. At that time the complainant’s trade union representative made contact with senior management within Older Persons Services to discuss a number of matters to include the application of this scheme.

· Management were open to discussing a number of issues in an effort to return the complainant to work however, no discussions materialised as Ms Hamilton was no longer representing the complainant and the issue of the CIP scheme being implemented did not progress any further. The first reference to the application of this scheme again was in the letter from Setanta Solicitors dated 23 June 2023.

· In the grievance decision by Ms Gourley, she confirmed that the complainant was not eligible for the scheme. She further confirmed the complainant had been advised of her right to raise a grievance in relation to same at the time of refusal and that she would raise the matter again with senior management. No agreement or commitment had ever been given to the complainant that she would be granted this scheme. Therefore the claim that it had been agreed that the complainant would be granted the scheme in June 2023 is incorrect and without substance or foundation. There was never an agreement to pay the complainant in accordance with this scheme and there is no evidence by the complainant to support such a claim. There is no breach of the Payment of Wages Act in this regard.

Complaint pursuant to the Employment Equality Act 1998

· Discrimination is defined in a number of different ways in the Employment Equality Acts. Section 6(1) states that 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 “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 definition of disability contained in the EEA1 initially appears to be based on the medical definition of disability as it sets out a list of broad categories of impairments within the definition as follows:

“disability” means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

· Section 16(3) of the EEA imposes the obligation of reasonable accommodation on employers for employees and prospective employees with a disability. Section 16(4) of the Acts then sets out the type of accommodations which could be made by an employer and these measures are referred to as appropriate measures. Such appropriate measures include adaption of premises or equipment, patterns of working time, distribution of tasks and the provision of training. However reasonable accommodation is not absolute and the measures required to enable a person to have access to employment, participate and advance in employment and undergo training are capped at a disproportionate burden.

· It requires employers to remove barriers and make adjustments to the work and the environment or structure, in order that disabled individuals are placed in a similar position to their non-disabled counterparts in the context of access to employment, to participate or advance in employment or the undergoing of training. It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary or required. It involves the person in an interactive dialogue with the employer to search for the right kind of accommodation needed in the overall circumstances of the case.

· In the complainant’s referral to the WRC she claims that she has been discriminated against on the grounds of her disability by the HSE failing to provide her with reasonable accommodation for her disability.

· Management have been on notice of the complainant’s disability since the commencement of her employment with the HSE in 2013. From 2013 until 2020 the complainant had worked seamlessly with the required reasonable accommodations in place as were set out by Occupational Health in 2013 prior to her commencement. In 2020 an updated Occupational Health report issued which identified further accommodations for the complainant which again were implemented without delay in compliance with management’s legal obligations and no issues or concerns were reported by the complainant.

· In 2021 the complainant had periods of sick leave due to the relocation of her office and the exacerbation of her disability. The complainant’s entire workstation was moved as a result of mandatory building works but management continued to provide the reasonable accommodations required; the only difference was the office itself. When the complainant made it known management in mid-June 2021 that she had a difficulty with particular type of flooring in the temporary office, this was the first indication management ever had that certain flooring could exacerbate her disability, it had never been mentioned before. Management arranged for a review of the office set up by Ms Carroll, qualified in the area of Quality and Safety. The advice of Ms Carroll was taken on board by management and they provided accommodations by way of a plastic mat, which was chosen by the complainant, being placed on the carpet floor which would allow the chair to move more freely than if it were directly on the carpet. However, the complainant at a later date advised that she did not deem this suitable. During the Occupational Health reviews management were never advised that the temporary office was unsuitable and should not be used; they were only notified that the flooring needed to be addressed and to maintain the existing accommodations in terms of the desk, chair and equipment; all of this was already in place for the complainant.

· In the Occupational Health report of July 2021 it was advised that the complainant was fit to return to work but there was no recommendation that an ergonomic assessment be conducted. When in discussions with the Assistant Director of Nursing, Ms Varghese in relation to returning to work, the complainant sought an ergonomic assessment. Ms Varghese duly contacted Occupational Health and an independent company to carry out the assessment to ensure the complainant had everything she required to return to work. That assessment was conducted and all recommendations from that report were put in place. (Appendix 21) This went way over and above what was required by management, it had not been recommended by Occupational Health nonetheless, management were conscious that the complainant had requested same and were willing to do everything necessary to accommodate her disability and ensure she returned to work with all supports in place.

· Essentially the only residual issue for the complainant was the actual office location. As stated, this office was out of use for mandatory building works to be carried out, this was beyond management’s control. While those works were ongoing the same desk, chair and equipment were all still in place for the complainant. There was no advice from Occupational Health at that time which set out the complainant could not move to the temporary office, the only accommodations required were the chair, desk, flooring and other equipment, all of which were in place. Occupational Health had actually deemed the complainant fit to return to work as early as July 2021 and every request made by the complainant, beyond that of Occupational Health, was conceded to by management. Any recommendations flowing from the complainant’s additional requests were fully accepted by management. Management also tried to alleviate any concerns the complainant had about moving of files or lifting etc and confirmed the portering staff on site would at all times be available to her if she required their assistance, the carpet was also removed from the office. Despite these measures and reassurances, the complainant did not return to work.

· Management have supported the complainant in every possible way with regard to her disability. All recommended equipment was at all times provided to the complainant; any updated requirements advised by Occupational Health were implemented and management went to great lengths outside of the medical advice from Occupational Health to ensure the complainant had all she required. In that regard there is no evidence to support the claim that management have discriminated against the complainant on the grounds of her disability.

Victimisation

· The complainant contends that she has been treated unlawfully by management by victimising her and discriminating against her on the grounds of her disability. It is her position as set out on her referral to the WRC that “the ongoing refusal of the employer to meaningful engage [sic] and holding threats over her position is on-going victimisation and penalisation.”

· The prohibition on victimisation in employment legislation is a significant protection within the legislative framework and prohibits the most egregious form of treatment by an employer against an employee.

· Victimisation, as a stand-alone cause of action, protects employees from retaliatory conduct on the part of their employer because the employee has relied upon discrimination law or has raised complaints of discrimination with their employer.

· It is an important form of protection as it has been shown that it is relatively common for employees who raise discrimination issues in the workplace to be subjected to a hostile working environment or deterioration in working conditions, either from management or from colleagues. It acts as a deterrent to adverse consequences for employees and protects employees from any hostile action or detriment on the part of their employer.

· Victimisation is defined in broad terms under the EEA. Section 74(2) provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

· Section 74(2) of the EEA sets out the acts which are protected from adverse treatment on the part of the employer, and the actions which an employee must have taken/indicated an intention to take, from which the reactionary behaviour of the employer emerged. It is clear, therefore, that section 74(2) is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the employee which is caused by her having undertaken a protected act of a type referred to in section 74(2).

· The key elements of victimisation provided for in section 74(2) of the EEA therefore are as follows:

• The employee had taken action of a type referred to at section 74(2) of the Acts (a protected act),

• The employee was subjected to adverse treatment by the respondent, and,

• The adverse treatment was in reaction to the protected action having been taken by the employee.

The foregoing elements are aimed at demonstrating that there is a causal connection between their taking of proceedings, or protected act and the adverse treatment by the employer.

Connection with equality rights:

· The alleged victimisation to which the employee was subjected must have a connection with an action to assert equality rights in order to be admissible as such a claim. In other words, the complaint raised by the employee or protected act taken by the employee must relate to discrimination.

Burden of proof:

· In order to meet the burden of proof required by section 85A of the EEA, the employee must demonstrate that there is a causal connection between their taking of proceedings, or protected act and the adverse treatment by the employer. Therefore an employee alleging victimisation is required to demonstrate the primary facts from which it can be inferred that the respondent has victimised the employee and that these facts are of a sufficient weight to raise a presumption of victimisation in order for them to meet the burden of proof required of them and for the burden of proof to shift to the employer.

· In this case the allegation of victimisation is wholly refuted by management and indeed is without any substance. The allegation is based on speculation and without any evidence to support such a claim.

· It has to be highlighted at this point that the period in time relevant to this claim can only be considered June to November 2021. The reason for the complainant’s absence on sick leave changed in November 2021 when she was diagnosed with covid 19 and she remains on sick leave to date as a result of this illness. The case referred to the WRC centres on the complainant’s claim regarding her disability, her resulting absence from June 2021 and the actions taken by management which she believes to be in contravention of the Employment Equality Act. All absences and resulting actions by management after November 2021 are in the context of the complainant’s current absence due to covid 19 and her long covid symptoms, they do not relate to the issues regarding her disability. It is a fact that in 2021 the complainant was deemed fit to return to work by Occupational Health and the issues which presented prior to November 2021 were relating to this only.

· As set out previously, management have been on notice of the complainant’s disability since the commencement of her employment with the HSE in 2013. From 2013 until 2020 the complainant had worked seamlessly with the required reasonable accommodations in place as were set out by Occupational Health. In 2020 an updated Occupational Health report issued which identified further accommodations for the complainant which again were implemented without delay in compliance with management’s legal obligations. In 2021 the complainant commenced sick leave due to the relocation of her office and the exacerbation of her disability. It must be noted that the complainant’s entire workstation was moved as a result of mandatory building works but management continued to provide the reasonable accommodations required; the only difference was the office itself. When the complainant made it known to Occupational Health that she had a difficulty with particular type of flooring in the temporary office, accommodations were made to resolve this. This was the first indication management ever had that particular flooring could exacerbate her disability. However, the complainant did not get to utilise any of accommodations made as she did not return to work and until November 2021 remained absent. The background and efforts by management relating to this period are set out in significant detail above.

· For the complainant to evidence victimisation and meet the burden of proof she must demonstrate that there is a causal connection between her taking of proceedings, or protected act and the adverse treatment by the employer. It is a fact that there has been no adverse treatment by her employer, the HSE. There have been significant accommodations made for the complainant, all of which were recommended by Occupational Health and an independent ergonomic assessment. All equipment was sourced and paid for by the employer; there was constant ongoing communication between the complainant, her trade union representative and management to try and progress the issues and return the complainant to work. Despite all efforts and the equipment in place, the complainant did not return to work. There are no actions taken by management anywhere within the sequence of events that could in anyway be construed as adverse treatment. All efforts made and actions carried out were with the utmost consideration for the complainant and with her involved at every step of the way.

· The allegation in the complaint to the WRC that the ongoing refusal to engage in a meaningful manner and holding threats over her position is wholly inaccurate and denied. As stated the complainant was fully involved at all stages from June 2021. When she was diagnosed with covid 19 in November 2021 the efforts being made for the complainant to return to work had to be suspended in light of her illness. In that regard the complainant was re-referred to Occupational Health for a new assessment relating to covid 19. The reports, as stated, have advised that the complainant was unfit for duty and remains so. No one could foresee that the complainant would be unfortunately so badly affected by this illness.

· During her absence the complainant sought the representation of a solicitor and a formal letter of complaint was first received by them on 27 June 2023. That correspondence was acknowledged and managed where the Director of Nursing, Ms Gourley wrote directly to Setanta Solicitors and offered dates to hear the complainant’s grievance as well as forwarding the letter to the Protected Disclosures unit for assessment. The grievance was heard by Ms Gourley and she issued a comprehensive detailed decision in October 2023. It took a further two months for any acknowledgement or response to issue from Setanta Solicitors. There is no validity to the claim that management have not engaged in a meaningful manner.

· The allegation that the complainant is having threats held over her position is false. It became apparent that the complainant is not registered in the general division of NMBI as is required when working in her current setting. When this was realised the complainant was notified and discussions were ongoing with her then representative, Ms Hamilton, INMO. At all times the complainant was reassured that management were committed to working with her in order to find a solution to this issue. This is reinforced in the grievance decision of 9 October 2023 from Ms Gourley where she stated “I wish to again offer assurances as per letter dated 04/11/2021 in relation to the retention of your normal roster pending these discussions and confirm that I am committed to working with you to find a satisfactory solution that provides compliance with regulatory requirements for all. It was agreed that this matter could be re-visited at a later date as the focus for now is a return to work when you are feeling well enough to return.” This demonstrates clearly that there is no threat to the complainant about her position, indeed it is quite the opposite. The decision by Ms Gourley confirms that the complainant’s normal roster is retained until a solution is found and that will not be dealt with until the complainant is fully fit and back on duty.

· The complaint of victimisation, as stated, is without evidence, foundation or any substance. The complainant has not demonstrated the primary facts from which it can be inferred that the respondent has victimised her and that these facts are of a sufficient weight to raise a presumption of victimisation in order for her to meet the burden of proof required of her and for the burden of proof to shift to the employer. That said, management reiterate the point that they have at all times worked with the complainant’s accommodations and wellbeing at the forefront of their efforts as is evidenced above.

Conclusion

· The complaint as submitted is that the complainant has been penalised or threatened with penalisation for having made a protected disclosure contrary to the Protected Disclosures Act 2014; that the HSE have victimised and discriminated against her due to her disability by not providing reasonable accommodation contrary to the Employment Equality Act 1998; that the HSE have not paid her the correct sick leave payments due to her contrary to the Payment of Wages Act 1991. The HSE do not accept any of these complaints and wholly refute same for the reasons as set out above.

Findings and Conclusions:

The complaint was received by the Workplace Relations Commission on 21st December 2023. This complaint comes in three parts, these are as follows:

CA – 00060671 – 001. – A complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014.

CA – 00060671 – 002 – A complaint seeking adjudication by the Workplace Relations Commission under S6 of the Payment of Wages Act, 1991.

CA – 0060671 – 003 - A complaint seeking adjudication by the Workplace Relations Commission under s77 of the Employment Equality Act, 1998.

The first mention of any Protected Disclosure was in the letter from Setanta Solicitors dated 27th June 2023. The Respondent has clearly stated the following:

Given that the protected disclosure was submitted on 27 June 2023 any actions referred to prior to this date cannot be deemed to constitute penalisation. Any actions taken after this date are denied as being anything but supporting the complainant on her period of absence and in no way constitute penalisation. Notwithstanding that, management submitted the complainant’s letter of 27 June 2023 to HSE’s designated Protected Disclosures Unit for appropriate assessment. That assessment deemed the complaint not to be a protected disclosure, further supporting management’s defence that penalisation did not occur.

Section 41(6) of the Workplace Relations Act 2015 reads as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complaint was received by the Workplace Relations Commission on 21st December 2023. The cognisable period therefore is 23rd June 2023 to 22nd December 2023. The complainant has been absent from the workplace since June 2021.

The Respondent has stated that any actions taken during the cognisable period were taken in support of the complainant on her period of absence and in no way constitute penalisation. From reading through the I feel I have to agree with the position adopted by the Respondent and therefore deem complaint number CA – 00060671 – 001 not to be well found.

CA – 00060671 – 002 - A complaint seeking adjudication by the Workplace Relations Commission under S6 of the Payment of Wages Act, 1991.

The complainant contends that it was agreed that CIP would be paid to her in June 2023.

On 7th July 2023 the INMO Industrial Relations Officer, Ms Noelle Hamilton, wrote to the Complainant, the content of this letter is as follows:

Dear Ms Robinson,

I trust this correspondence finds you well. I am writing to you regarding our ongoing representation on your behalf regarding your application for CIP being declined and the subsequent appeal process we were progressing on your behalf.

Yesterday we received notification from HSE DNCC management that they have received written instruction from Setanta Solicitors dated 27th June 2023 citing that they are now your representatives. In light of this notification, the HSE have paused consideration of this matter pending clarification of whom your appointed representative is, i.e. the INMO or Setanta Solicitors.

Can you please confirm, by return, if you have instructed solicitors to act on your behalf and no longer require representation from the INMO.

Kind regards

The Respondent has comprehensively addressed this matter in their submission. The complainant did invoke a grievance however, the decision at stage 1 of the procedure did not uphold the complaint for the reasons that she did not meet the criteria for the scheme, and she was advised of her right to appeal that decision. The Complainant did not pursue the matter to stage 2.

It is for this reason that I have to find that complaint CA – 00060671 – 002 is not well found.

CA – 00060671 – 003. A complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.

As per complaint form the Complainant has provided the following specific details of this complaint:

“I am suffering from Long Covid. It was agreed that CIP would be paid to me in June 2023. That has never been paid. The total is €5,635 per month and which loss is continuing. The non-payment of such constitutes discrimination pursuant to my disability”.

The complainant did invoke a grievance however, the decision at stage 1 of the procedure did not uphold the complaint for the reasons that she did not meet the criteria for the scheme, and she was advised of her right to appeal that decision. The Complainant did not pursue the matter to stage 2. The general rules that apply to Critical Illness Protocol (CIP) are as follows:

From Office of the Civil Service Chief Medical Officer

Published on 25 March 2024

Last updated on 17 May 2024

In the Irish public sector, if an employee is deemed to have a “critical illness”, the duration of sick pay can be extended under certain circumstances.

The employee should ordinarily be under the current or recent ongoing clinical care of a hospital consultant. The employee must have been deemed medically unfit for work by an occupational physician, and the medical condition must have at least one or more of the following characteristics-

· Acute life threatening physical illness

· Chronic progressive illness, with well-established potential to reduce life expectancy

· Acute major physical trauma ordinarily requiring corrective acute operative surgical treatment

· In-patient or day hospital care of 10 consecutive days or greater, 2 days or greater of inpatient care if pregnancy related illness

Where an individual does not meet the above medical criteria, provided that an occupational physician has found them medically unfit for work, management still have the discretion to award extended pay. In exercising this discretion, management have to establish that exceptional circumstances apply.

Employees who wish to avail of the Critical Illness Pay (CIP) Scheme must first apply to their HR section. If their HR section deem them eligible to apply, they are then referred to the CMO’s office to establish if the medical criteria are met. The final decision on granting CIP pay lies with the employer.

I find that complaint numbered CA – 00060671 – 003 is not well found.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As outlined above.

Dated: 23 January 2025

Workplace Relations Commission Adjudication Officer: Jim Dolan

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