EDA2126

1. Appeal of Adjudication Officer's Decision No(s): ADJ-00017231 CA-00029523-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 26 March 2020. A Labour Court hearing took place in a virtual Courtroom on 15 April 2021. The following is the Court's Determination:-



DETERMINATION :

Background to the Appeal

This is an appeal by Ms Monica McEntee (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00017231, dated 24 February 2020) under the Employment Equality Act 1998 (‘the Act’). There are two aspects to the Complainant’s case under the Act: she alleges that her employer, the Health Service Executive (‘the Respondent’), failed to make reasonable accommodation for her disability and, secondly, that she was victimised by the Respondent for having made her initial complaint. The first complaint (CA-00023069-001) was received by the Workplace Relations Commission on 6 November 2018. The second complaint (CA-00029523-001) was received on 8 July 2019. The Adjudication Officer heard both complaints together on 6 November 2019 (along with a further complaint under the Industrial Relations Act 1969, which is not under appeal). The Adjudication Officer held that neither claim under the Act was well-founded. The Complainant appealed to this Court from that decision by Notice of Appeal dated 26 March 2020. The Court heard the appeal in a virtual courtroom on 15 April 2021.

Factual Matrix

The Complainant is a Registered General Nurse. In December 2010, she redeployed from Monaghan General Hospital to the role of a Community Registered General Nurse (‘CRGN’) in the Public Health Nursing Service working as a member of a Primary Care Team based in Carrickmacross, Co. Monaghan. Driving is an essential element of her role as a CRGN as she is required to undertake visits to persons living in the community in their own homes, often in remote areas.

The Complainant commenced a period of certified sick leave on 9 April 2018. Her initial medical certificates indicated her cause of illness as ‘medical reasons’. This changed from 18 June 2018 onwards to ‘Back Pain’. The Complainant submits that she has been diagnosed with a condition known as Bilateral Gluteal Tendinopathy which is aggravated by prolonged periods of sitting. In particular, she submits, her condition makes it very difficult for her to drive for more than twenty minutes at a time. The Complainant remained on certified sick leave until November 2019.

Complainant’s Case

The Complainant’s case is that she engaged proactively and exhaustively with the Respondent from June 2018 onwards in an effort to identify a suitable position that would allow her to return to work by making reasonable accommodation for her disability. The Complainant accepts that the Respondent made a number of proposals to her, none of which she regarded as suitable other than an offer of a position in Monaghan General Hospital. The Complainant did not accept the latter offer because the Respondent was unable to guarantee the Complainant that she would not subsequently be moved within Monaghan General Hospital.

The Complainant claims that she was victimised in two respects: firstly by the Respondent’s failure to respond to a form EE2 which she had submitted and secondly by its failure to fully consider her application for the Critical Illness Protocol whereby managerial discretion could have been exercised to allow her paid sick leave to be extended.

Respondent’s Case

The Respondent outlined in some detail that it had offered a total of six different alternative positions to the Complainant by way of reasonable accommodation (CRGN Castleblayney, Staff Nurse Monaghan General Hospital (2 different positions), Staff Nurse Cavan Hospital with transport, CRGN in Ballybay with two days in Castleblayney and CRGN in Ballybay with reduced hours). The Complainant rejected each of the aforementioned offers. The Respondent denies that it victimised the Complainant in exercising its discretion not to reply to her EE2 form. It further states that the usual medical criteria that are taken into account when exercising discretion to apply the Critical Illness Protocol did not apply in the Complainant’s case.

The Law

The obligation on an employer to make reasonable accommodation for an employee with a disability within the meaning of the Act is found in section 16 of the Act as follows:

• “(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
  • (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
    (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
  (2) In relation to—
  • (a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
    (b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and
    (c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,
  subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.
  (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)—
  “employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—
  • (a) such a person who is seeking or using any service provided by the employment agency,
    (b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and
    (c) such a person who is a member of or is seeking membership of the regulatory body.
  “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;
  (5) Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.
  (6) Without prejudice to the generality of subsection (5), that sub-section applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable.”

Victimisation for the purposes of the Act is defined in section 74(2) as follows:

• “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,
    (c) an employee having represented or otherwise supported 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 Status Act 2000 or any such repealed enactment,
    (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 or 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.”

The Court was provided with a very detailed account of the engagements that took place between the Parties, commencing in early July 2018, with a view to facilitating the Complainant’s return to work. Section 16 of the Act was the subject of detailed consideration by the Supreme Court in Nano Nagle School v Daly [2019] E.L.R. 221 in which the Court held, inter alia, that the section does not impose an obligation on an employer to create an alternative job for an employee with a disability – the obligation is merely to provide appropriate measures (that do not impose a disproportionate burden on the employer) that can facilitate an employee with a disability to fulfil the requirements of the job for which they have been hired. This Court is satisfied, having carefully reviewed the evidence before it in relation to the Respondent’s efforts to provide reasonable accommodation to the Complainant, that the Respondent went above and beyond the extent of its obligations under section 16 as articulated by the Supreme Court in Nano Nagle.

The Court is also satisfied that the Complainant has failed to elevate her claims of victimisation against the Respondent beyond the level of mere assertions in so far as she has not discharged the burden of demonstrating a causal link between the fact of her complaints under the Act and the decisions taken by the Respondent to exercise its discretion not to reply to her Form EE2 and not to apply the Critical Illness Protocol to her.

In all the circumstances, therefore, the appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
24 August, 2021	______________________
CC	Deputy Chairman