Complainant

Respondent

Parties

Robyn  Poole

Health Service Executive

Representatives

Setanta Solicitors

 Employee Relations Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00056306-001

25/04/2023

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

CA-00056306-002

25/04/2023

It was the Complainant’s complaints that she was not paid sick pay for the duration of period of sick leave from her employment with the Respondent which was also a complaint of discrimination on the grounds of disability and failure of the Respondent to provide reasonable accommodation.

At the hearing, the Complainant gave evidence of her complaints on affirmation. Submissions were received in advance of the hearing.

Mr. Colm Kinch of the RCSI Hospital Group appeared as a representative for the Respondent. Mr. Kinch confirmed the correct name of the Respondent at the outset of the hearing who advised that Cavan Monaghan Hospital fell under the RCSI Group. No submissions were received from the Respondent as it believed the complaints had been dealt with. Neither Mr. Eamonn Ross nor Mr. Kinch said they were not in a position to give evidence on oath or affirmation.

There were a number of complaints heard on the same day; ADJ-00045558, ADJ-00045562, ADJ-00045561 and ADJ-00045454.

It was the Complainant’s evidence that she commenced employment on 13 July 2015 as a medical intern and continued to work in various sectors of the HSE.

Payment of Wages - CA-00056307-001

It was the Complainant’s evidence she was on sick leave for 68 days however, she was only paid for 18 days at her full rate of pay with a further 17 days at half her rate of pay. It is her complaint that there are 33 days outstanding at full pay and an additional 17 days at half pay. The total sum of her complaint is €10,428.95.

It was the Complainant’s evidence that she had the required service under her contract of employment within Clause 9(f) (v) with reference to Section 5 of the Department of Health Circular 05/2014.

From 10 November 2022 up to 22 March 2023 the Complainant sought to engage with the Respondent in order to rectify the situation, but it remains unresolved.

Employment Equality- CA-00056307-002

It was the Complainant’s evidence that she was a renal transplant recipient. In August 2022, she became unwell and was advised by Occupational Health that she could not continue her work in the emergency department due to her high immunological risk. On 20 August 2022 she commenced certified sick leave until 2 November 2022. During this time, the Complainant gave evidence that she underwent separate treatment for which she was on certified sick leave.

It was submitted by the Complainant that the Respondent failed to reasonable accommodate her for disability by failing to pay my sick leave entitlements.

It was submitted that the Complainant was treated differently from other employees without disabilities in being restricted to certain duties, having her roles removed from her and being restrained from engaging in client facing activities.

The Complainant relied upon A Government Department v A Worker [EDA094], A Technology Company v A Worker [EDA0714], f An Employee v A Broadcasting Company [2012] 23 ELR 88, Valpeters v Melbury Developments Limited [2010] ELR 64,   2 Named Complainants v A Catering Company [2018] to support her complaint of discrimination on the grounds of disability .

She further relied upon Nano Nagle v Daly [2019] IESC 63 and Cunningham v Irish Prison Service [2020] IEHC 282 to support her complaint of discrimination on the grounds of failure to provide reasonable accommodation.

Payment of Wages - CA-00056307-001

It was submitted the payments had been made to the Complainant – at the hearing it was submitted that the sum of €5,000 had been made to the Complainant. By email dated 27 August 2024, Mr Kinch stated that all outstanding sick leave had been paid to the Complainant and sought to withdraw the complaints under both Payment of Wages Act 1991 and Employment Equality Act 1998 – 2015.

The Respondent did not dispute the pay of wages complaint.

Employment Equality - CA-00056307-002

No evidence was submitted by or on behalf of the Respondent in response to this complaint.

The Respondent’s email of 27 August 2024 sought to withdraw both complaints was received by the WRC with the Complainant’s solicitor copied in. By reply on 28 August 2024, the Respondent was advised by the Workplace Relations Commission that the complaints cannot be closed until confirmation is received from the Complainant or her Solicitor. The Complainant’s Solicitor was also copied in on this letter.

By letter dated 11 February 2025, the Complainant was written to with the Respondent’s copied, were written seeking clarification as to which complaints were being withdrawn as the submissions differed to what was put forward at the hearing. Clarifications were also sought as to the Respondent’s emails of 27 August 2024.

It was requested that there be a response by close of business on 19 February 2025. No response was received by 24 February 2025. Consequently, all five decisions filed with the Workplace Relations Commission by the Complainant were issued.

Payment of Wages - CA-00056307-001

The Complainant’s evidence is accepted in the absence of it being disputed by the Respondent and based on the evidence before me.

I find the complaint is well founded.

Employment Equality - CA-00056307-002

Section 6 of the Employment Equality Acts 1998-2015 (as amended) provides the definition of discrimination:

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

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

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(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.”

Section 16 (3) provides the nature and extend of the employer’s obligations to employees with a disability:

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

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

(i) to have access to employment

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility, or thing that the person might ordinarily or reasonably provide for himself or herself;”

Section 16(3) of the Act requires an employer to take appropriate measures, where needed, to enable a person with a disability to have access to employment, to participate in and advance in employment or undergo training.  MacMenamin J in Nano Nagle v Daly [2019] IESC 63 held that the Section 16(3) of the Act places mandatory duty on the employer to take all “appropriate measures” unless any measure would constitute a “disproportionate burden” for the employer. The employer must demonstrate that they have fully considered the reasonable accommodation question.  In its judgment the Supreme Court held that the test is one of reasonableness and proportionality.

In Cunningham v Irish Prison Service [2020] IEHC 282 the High Court held: “Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome on the employer and did not impair the operational capacity.”

Section 85A of the Employment Equality Act 1998-2015 sets out the burden of proof:

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

Therefore, the burden of proof is on the Complainant to show that he was treated less favourably on account of his disability and was not reasonably accommodated in the workplace.

There was no dispute as to the Complainant’s disability. Therefore, it is accepted. 

It is noted that the Complainant stated it had become standard for her in her employment to have an occupational health review before commencing rotation. She had sought this review before taking up her appointment within the emergency department of Cavan Monaghan but was not provided with an appointment. For a second time she sought an appointment with occupational health after she became “very ill and fatigued” in August 2022 but did not receive one until she made her own arrangements.  She was certified on sick leave from 20 August 2022 by her own GP. When she liaised with the relevant department and was reassigned to another area with the hospital. I find for these reasons she discharged the burden of proof required.

In the absence of the evidence from the Respondent, I find that it was a failure to reasonably accommodate the Complainant with an occupational health review in advance of commencing her rotation within the emergency department in light of her disability and particularly due to the presence of Covid19 at the time. 

It is noted that the Respondent did to its credit, within a period of 1 month, find the Complainant an alternative department to carry on your work.

In terms of her complaint of sick pay, it was the Complainant’s evidence that the 1 September 2022 was the last “normal payslip” and it was incorrect thereafter. It was her evidence that she was entitled to 35 days full pay but only received 18 days and 35 days at half a day rate but only received 17 days. It is also noted that the Complainant was certified on sick leave by her GP for a secondary issue during this time also, but it is unclear for what period.

In the absence of clear evidence from the Complainant on the dates she was certified on sick leave by her GP for the secondary matter and alternative evidence or questioning from the Respondent, I am limited to considering the period from 20 August to the date she was provided with an alternative department by the Respondent on 23 September 2022. During which there are 25 workings days. Accepting the undisputed evidence that she was only paid her full rate for 18 of these 25 days compared to her colleagues who received the full benefit of sick leave, I find the Complainant has discharged the burden of proof in this regard also. 

In the absence of a defence to consider, I find the Complainant was discriminated against by the Respondent.

Payment of Wages - CA-00056307-001

In terms of redress, Section 6(1) of the Payment of Wages Act 1991 provides:

“6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (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,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

Where the complaint is well founded, I direct the Respondent to pay the Complainant compensation of €1,076.50 being twice the amount the deduction would have been paid if the deduction had not been made. This figure is based on her half day pay rate.

Employment Equality - CA-00056307-002

I find the Complainant was discriminated against by the Respondent.

Having regard to all the circumstance of this case I am satisfied that the appropriate redress is an award of compensation for discrimination on the grounds of disability and failure to provide reasonable accommodation, and I order the Respondent to pay the Complainant the sum of €5,000 for the discriminatory treatment endured.

Discrimination – Payment of Wages

Complainant

Respondent

Parties

Robyn  Poole

Health Service Executive

Representatives

Setanta Solicitors

 Employee Relations Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00056306-001

25/04/2023

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

CA-00056306-002

25/04/2023

It was the Complainant’s complaints that she was not paid sick pay for the duration of period of sick leave from her employment with the Respondent which was also a complaint of discrimination on the grounds of disability and failure of the Respondent to provide reasonable accommodation.

At the hearing, the Complainant gave evidence of her complaints on affirmation. Submissions were received in advance of the hearing.

Mr. Eammon Ross appeared as a representative for the Respondent with Mr. Colm Kinch of the RCSI Hospital Group. Mr. Kinch confirmed the correct name of the Respondent at the outset of the hearing who advised that Cavan Monaghan Hospital fell under the RCSI Group. No submissions were received from the Respondent as it believed the complaints had been dealt with. Neither Mr. Ross nor Mr. Kinch said they were not in a position to give evidence on oath or affirmation.

There were a number of complaints heard on the same day; ADJ-00045558, ADJ-00045562, ADJ-00045561 and ADJ-00045454.

It was the Complainant’s evidence that she commenced employment on 13 July 2015 as a medical intern and continued to work in various sectors of the HSE.

Payment of Wages - CA-00056307-001

It was the Complainant’s evidence she was on sick leave for 68 days however, she was only paid for 18 days at her full rate of pay with a further 17 days at half her rate of pay. It is her complaint that there are 33 days outstanding at full pay and an additional 17 days at half pay. The total sum of her complaint is €10,428.95.

It was the Complainant’s evidence that she had the required service under her contract of employment within Clause 9(f) (v) with reference to Section 5 of the Department of Health Circular 05/2014.

From 10 November 2022 up to 22 March 2023 the Complainant sought to engage with the Respondent in order to rectify the situation, but it remains unresolved.

Employment Equality- CA-00056307-002

It was the Complainant’s evidence that she was a renal transplant recipient. In August 2022, she became unwell and was advised by Occupational Health that she could not continue her work in the emergency department due to her high immunological risk. On 20 August 2022 she commenced certified sick leave until 2 November 2022. During this time, the Complainant gave evidence that she underwent separate treatment for which she was on certified sick leave.

It was submitted by the Complainant that the Respondent failed to reasonable accommodate her for disability by failing to pay my sick leave entitlements.

It was submitted that the Complainant was treated differently from other employees without disabilities in being restricted to certain duties, having her roles removed from her and being restrained from engaging in client facing activities.

The Complainant relied upon A Government Department v A Worker [EDA094], A Technology Company v A Worker [EDA0714], f An Employee v A Broadcasting Company [2012] 23 ELR 88, Valpeters v Melbury Developments Limited [2010] ELR 64,   2 Named Complainants v A Catering Company [2018] to support her complaint of discrimination on the grounds of disability .

She further relied upon Nano Nagle v Daly [2019] IESC 63 and Cunningham v Irish Prison Service [2020] IEHC 282 to support her complaint of discrimination on the grounds of failure to provide reasonable accommodation.

Payment of Wages - CA-00056307-001

It was submitted the payments had been made to the Complainant – at the hearing it was submitted that the sum of €5,000 had been made to the Complainant. By email dated 27 August 2024, Mr Kinch stated that all outstanding sick leave had been paid to the Complainant and sought to withdraw the complaints under both Payment of Wages Act 1991 and Employment Equality Act 1998 – 2015.

The Respondent did not dispute the pay of wages complaint.

Employment Equality - CA-00056307-002

No evidence was submitted by or on behalf of the Respondent in response to this complaint.

The Respondent’s email of 27 August 2024 sought to withdraw both complaints was received by the WRC with the Complainant’s solicitor copied in. By reply on 28 August 2024, the Respondent was advised by the Workplace Relations Commission that the complaints cannot be closed until confirmation is received from the Complainant or her Solicitor. The Complainant’s Solicitor was also copied in on this letter.

By letter dated 11 February 2025, the Complainant was written to with the Respondent’s copied, were written seeking clarification as to which complaints were being withdrawn as the submissions differed to what was put forward at the hearing. Clarifications were also sought as to the Respondent’s emails of 27 August 2024.

It was requested that there be a response by close of business on 19 February 2025. No response was received by 24 February 2025. Consequently, all five decisions filed with the Workplace Relations Commission by the Complainant were issued.

Payment of Wages - CA-00056307-001

The Complainant’s evidence is accepted in the absence of it being disputed by the Respondent and based on the evidence before me.

I find the complaint is well founded.

Employment Equality - CA-00056307-002

Section 6 of the Employment Equality Acts 1998-2015 (as amended) provides the definition of discrimination:

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

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

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(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.”

Section 16 (3) provides the nature and extend of the employer’s obligations to employees with a disability:

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

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

(i) to have access to employment

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility, or thing that the person might ordinarily or reasonably provide for himself or herself;”

Section 16(3) of the Act requires an employer to take appropriate measures, where needed, to enable a person with a disability to have access to employment, to participate in and advance in employment or undergo training.  MacMenamin J in Nano Nagle v Daly [2019] IESC 63 held that the Section 16(3) of the Act places mandatory duty on the employer to take all “appropriate measures” unless any measure would constitute a “disproportionate burden” for the employer. The employer must demonstrate that they have fully considered the reasonable accommodation question.  In its judgment the Supreme Court held that the test is one of reasonableness and proportionality.

In Cunningham v Irish Prison Service [2020] IEHC 282 the High Court held: “Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome on the employer and did not impair the operational capacity.”

Section 85A of the Employment Equality Act 1998-2015 sets out the burden of proof:

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

Therefore, the burden of proof is on the Complainant to show that he was treated less favourably on account of his disability and was not reasonably accommodated in the workplace.

There was no dispute as to the Complainant’s disability. Therefore, it is accepted. 

It is noted that the Complainant stated it had become standard for her in her employment to have an occupational health review before commencing rotation. She had sought this review before taking up her appointment within the emergency department of Cavan Monaghan but was not provided with an appointment. For a second time she sought an appointment with occupational health after she became “very ill and fatigued” in August 2022 but did not receive one until she made her own arrangements.  She was certified on sick leave from 20 August 2022 by her own GP. When she liaised with the relevant department and was reassigned to another area with the hospital. I find for these reasons she discharged the burden of proof required.

In the absence of the evidence from the Respondent, I find that it was a failure to reasonably accommodate the Complainant with an occupational health review in advance of commencing her rotation within the emergency department in light of her disability and particularly due to the presence of Covid19 at the time. 

It is noted that the Respondent did to its credit, within a period of 1 month, find the Complainant an alternative department to carry on your work.

In terms of her complaint of sick pay, it was the Complainant’s evidence that the 1 September 2022 was the last “normal payslip” and it was incorrect thereafter. It was her evidence that she was entitled to 35 days full pay but only received 18 days and 35 days at half a day rate but only received 17 days. It is also noted that the Complainant was certified on sick leave by her GP for a secondary issue during this time also, but it is unclear for what period.

In the absence of clear evidence from the Complainant on the dates she was certified on sick leave by her GP for the secondary matter and alternative evidence or questioning from the Respondent, I am limited to considering the period from 20 August to the date she was provided with an alternative department by the Respondent on 23 September 2022. During which there are 25 workings days. Accepting the undisputed evidence that she was only paid her full rate for 18 of these 25 days compared to her colleagues who received the full benefit of sick leave, I find the Complainant has discharged the burden of proof in this regard also. 

In the absence of a defence to consider, I find the Complainant was discriminated against by the Respondent.

Payment of Wages - CA-00056307-001

In terms of redress, Section 6(1) of the Payment of Wages Act 1991 provides:

“6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (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,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

Where the complaint is well founded, I direct the Respondent to pay the Complainant compensation of €1,076.50 being twice the amount the deduction would have been paid if the deduction had not been made. This figure is based on her half day pay rate.

Employment Equality - CA-00056307-002

I find the Complainant was discriminated against by the Respondent.

Having regard to all the circumstance of this case I am satisfied that the appropriate redress is an award of compensation for discrimination on the grounds of disability and failure to provide reasonable accommodation, and I order the Respondent to pay the Complainant the sum of €5,000 for the discriminatory treatment endured.

Discrimination – Payment of Wages