Case Number: ADJ-00025513. Workplace Relations Commission

• Docket Number: ADJ-00025513
• Hearing Date: 01 February 2022
• Date: 01 March 2022
• Court: Workplace Relations Commission

Procedure:

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

The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation. I have decided to anonymise the decision in this case as there are many references to the Complainant’s past medical situation.

Background:

The Complainant contends that she was discriminated against on the grounds of disability when the Respondent required her to move from a work location where she had reasonable accommodation to allow her to carry out her duties to one where she could not. The complaint is that the Respondent failed to provide her with such reasonable accommodation and that she was at a loss of earnings when she was on sick leave for a period of some months without pay.

Summary of Complainant’s Case:

The complainant has suffered from several medical issues which she has successfully managed over a number of years and has always worked hard to regain good health to return to work as she is a committed and loyal employee of the Organisation. The complainant worked in a location known as “C” whereby reasonable accommodation was provided to her regarding working night shift. The complainant has a disability regarding bilateral deafness, the complainant wears a hearing device which must be detached while sleeping. This means the complainant cannot work sleepovers unless another staff is present as there is a risk that she would be unable to hear a service user if they were to call for assistance during the night. The complainant suffered a fractured spine in 2017 while carrying out domestic work in her home, she recovered well and returned to work in C and the reasonable accommodation of not working nights continued. The complainant suffered a fractured hip in March 2018, following a DEXA scan which gave a diagnosis of osteoporosis the complainant underwent a full hip replacement and again recovered and returned to work in May 2018. In February 2019 the complainant received a phone call from the Person in Charge (PIC) who advised that she was being moved, when the complainant objected and queried why, the PIC advised it was because she could not work nights. Despite her objection the complainant was moved to a location called “V”, the service users in this particular location required a high level of physical support which required the usage of heavy wheelchairs, large hoists etc. The physical demands of V caused significant difficulty for the complainant who began to suffer with her back for the first time since her injury in 2017. She attended her GP who deemed she was unfit for work due to back pain from 5th April 2019. The complainant attended Medmark on the 23rd April 2019 who deemed that she was fit to return to work. The complainant contacted local HR to advise that Medmark had deemed her fit to return to work however local HR advised that she should continue to send in her GP certs until Management have received the report. The complainant sought an update through her union shop steward who emailed Human Resources on 9th May 2019 regarding the matter. The response received was that Management had received the report on the 29th April 2019 and thought the complainant was back at work. The Medmark report of 23rd April 2019 states the following under Restrictions / Accommodations (appendix 3) • I recommend a risk assessment of the role is carried out in order to ensure that it is a safe role • I recommend that [The Complainant] attends an up-to-date Manual Handling training course and adheres to the regulations at all times • In view of [The Complainant’s} health issues in recent years, a move to a less physically challenging position may be beneficial to her general wellbeing going forward if this can be accommodated. On 10th May 2019 the complainant formally wrote to the Human Resources Manager requesting that reasonable accommodation be provided to her in line with the Doctors recommendation from Occupational Health. Supporting this request was also correspondence from her own GP. The complainant met with Management on the 17th September 2019 to discuss her return to work, the meeting was devastating for the complainant as she was advised by Management that there was no role for her within the service. The complainant was desperate to return to work to the job she enjoyed doing for 21 years. In an effort to exhaust every avenue available to her she raised a grievance with management. She did not have a grievance meeting. It was only at this juncture some five months later that the risk assessment was carried on 28th September 2019 after the complainant lodged a formal grievance. The complainant did not participate in this exercise and nor was she requested to. The complainant received correspondence dated 15th October 2019 from the Human Resource Manager advising that the respondent were engaging an independent company namely LCE Workplace Safety to have a discussion with a Health and Safety Consultant and that they would be in contact once this happened. Representations were made to the Human Resource Manager on behalf of the complainant seeking an update by way of email on 6th November 2019 and advising that due to the length of time this issue had been ongoing there was no choice but to refer the matter to the Workplace Relations Commission, a response was received on the 11th November 2019 advising that the respondent was waiting on dates. A case was referred to the WRC on the 22nd November 2019. Further representations were made seeking an urgent update 28th November 2019, a response advised that the review was still ongoing. The report was eventually received on 6th January 2020 and the complainant and her representative met with the respondent 8th January 2020 to discuss the complainants return work. Following a review by Medmark on 15th January 2020 the complainant was returned to work in February 2020 in another location and has remained at work throughout the whole of the Corona Virus Pandemic with the exception of one absence due to a chest infection. The complainant was treated appallingly by her employer throughout 2019, she was working well in a location where reasonable accommodation had been provided regarding sleepovers. The respondent has failed to provide reasonable or rationale grounds for why they deviated from this arrangement. Despite requests from Occupational Health and the complainants General Practitioner the respondent did not facilitate this reasonable accommodation until some 9 months later. During a meeting on 17th September 2019 the complainant was told by the respondent that no positions existed in the organisation for her, it is worth noting that at this point the respondent had not yet completed the risk assessment requested by Occupational Health on 23rd April 2019 even though HR confirmed in an email to the Shop Steward on 9th May 2019 that one had been carried out. The risk assessment requested by Occupational Health was not carried until some five months later and this only occurred after a formal grievance was lodged. Case law cited in support of the argument in relation to this case: Nano Nagle School, Appellant, v. Marie Daly, Respondent, [2018] IECA 11 A Caretaker, v. A Property Management Company ADJ-00006318 A Development Manager, v. A Technology Company ADJ-00023345 Marie O’Shea v Health Service Executive ADJ-00024740 The complainant had a reasonable accommodation in place with the respondent who removed the provision with any consideration and caused much distress and financial loss to the complainant.

Summary of Respondent’s Case:

The Complainant is employed by the Respondent since 1998.

The following is the pattern of the Claimant’s sick leave since 2015;

May 2015 – August 2015

Medmark Report July 2015 outlined that she be placed in a location whereby the risk of a service user...