(REPRESENTED BY IRISH NURSES ORGANISATION)
A PRIVATE HEALTHCARE FACILITY
(REPRESENTED BY IBEC)
This dispute involves a claim by Ms. F that she was discriminated against by the respondent on grounds of disability, in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 8 of that Act when between February, 2004 and May, 2004 it refused to allow her to return to work following an absence due to a back injury. The complainant further claims that in reaching that decision the respondent did not examine the possibility of furnishing her with reasonable accommodation which would have allowed her resume duty. The complainant requested anonymity in this Decision and the respondent had no objection to same. In the circumstances I have decided to accede to the request.
2.1 The complainant commenced employment as a nurse with the respondent on a part-time basis in June, 2003. In late December, 2003 she sustained a back injury which resulted in her absence from work. In late February, 2004 she sought to return to work, indicating that she would have to avoid excessive lifting or bending and suggested that she would require some accommodation. A number of meetings took place between the parties and several pieces of correspondence passed between them. However agreement on how the complainant might return to work could not be reached. The complainant did not resume duty and resigned from her position on 15 May, 2004. The respondent rejects the assertion that it discriminated against the complainant and notwithstanding this agues that the complaint is out of time as it was referred to the Tribunal outside of the six month time limit provided at section 77 of the Act.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 23 November, 2004. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 23 April, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment as a nurse with the respondent on a part-time basis in June, 2003. She states that she sustained a back injury whilst at work on 31 December, 2003, although she did not report the incident at that time. She adds that she reported for duty on her next rostered shift but the pain was severe and she was subsequently certified as unfit to follow her occupation by her General Practitioner on 8 January, 2004. She states that she met with the respondent's Matron (Ms. M) the following day to discuss difficulties she was having with her immediate Line Manager on the ward she was assigned to. She adds that she attended a further meeting with Ms. M, her (the complainant's) immediate Line Manager and her INO Official on 29 January, 2004 to discuss the interpersonal problems she was having with her Line Manager and states that this did not resolve the issues. The complainant states that she attended a Consultant Neurosurgeon on 18 February, 2004 who advised that she "had probably suffered ligamentous or soft tissue injury" to her back the previous December and that "she would be fit to return to work, but should obviously protect herself in the first instance from excessive bending and lifting". The complainant adds that she telephoned Ms. X (Clinical Nurse Manager 2 with the respondent) on 26 February, 2004 indicating that she wished to return to work. The complainant contends that Ms. X asked her if she could lift and when she (the complainant) stated that she would require some accommodation, Ms. X informed her she had consulted with the Matron and she could only return if she was able to lift patients and requested a letter from her Consultant on the matter.
3.2 The complainant states that Ms. M wrote to her on 1 March, 2004 seeking an expected date for her return to work. The complainant replied on 5 March outlining her conversation with Ms. X and stating that "she would like if work could be found for me in the short term in an appropriate environment, which hopefully would hasten my recovery as I believe that lifting is inadvisable for my health at present....". She also agreed to forward her Consultant's opinion indicating her expected date of return. The complainant sent a copy of her Consultant's opinion (dated 4 March, 2004) to Ms. X on 8 March. This opinion stated that "she could return to her occupation but would need to be careful when bending or lifting. It is possible that this could pose some restriction to her being able to return to work in a full-time capacity and there may be some restrictions with regard to her place of work. However, if she is able to manage relatively light duties for a 3-4 week period, then she could probably contemplate getting back to her normal activities thereafter." The complainant states that the respondent refused to allow her return to work and instead forced her to remain on sick leave and subsequently referred her to its Occupational Health Specialist on 1 April, 2004. His opinion was that he was "happy for her to return to all working duties without restriction or limitations". The complainant states that this opinion conflicts with that of her Consultant Neurosurgeon, her General Practitioner, along with similar views expressed by a Physiotherapist and Chiropractor whom she visited following her back injury. The complainant states that that the respondent, acting on the opinion of the Occupational Health Specialist, wrote to her on 26 April, 2004 seeking a date for her to resume her duties. She adds that it did not seek a further independent view in light of the medical opinions and it did not ensure that it had all relevant material in its possession before taking its decision to seek the complainant's return to work.
3.3 The complainant states that the respondent wrote to her on 7 May, 2004 again requesting a date for her return to work and advising that it did not have any vacancies in clinical areas which did not require manual handling. She replied on 11 May disagreeing with the Occupational Health Specialist's opinion, advising that she was suffering from pins and needles in her right foot and was unable to resume work if she was required to perform her full range of duties, that her General Practitioner was of this view and that she was awaiting further discussion with her Consultant Neurosurgeon. The complainant states that she felt she had no option other than to resign and gave notice of her resignation from her position on 15 May, 2004, effective immediately and terminating on 12 June, 2004,
3.4 The complainant submits that she was refused permission to return to work solely on the grounds of her disability and that this constitutes discrimination of her contrary to the Act. She further submits that the respondent made the unilateral decision to refuse her the opportunity to return to work without regard to exploring whether there were any "special treatment or facilities" which could be afforded to her to render her fully competent and capable to carry out the duties attached to her post. Finally, the complainant rejects the respondent's assertion that the complaint was referred to the Tribunal outside of the prescribed time limit. She argues that the refusal of the respondent to allow her return to work commenced in February, 2004 and continued to operate until her employment ceased with the respondent - 12 June, 2004 - the date her notice terminated. She states that her complaint was referred to the Tribunal on 23 November, 2004 and is therefore within time.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent submits in the first instance that the complaint is referred outside of the timelimit prescribed by the Act. It argues that the complainant's referral form indicates that the last date of the alleged discriminatory treatment occurred in May, 2004. It contends that if this is the case then the last date on which the respondent could have treated the complainant less favourably was 14 May, 2004 - the date on which the respondent last wrote to the complainant about the matter. The respondent states that the complaint was not received by the Equality Tribunal until 23 November, 2004 and submits that it is out of time and is not therefore not properly before the Tribunal.
4.2 The respondent states that the complainant met with and spoke on the telephone with Ms. M on several occasions during January, 2004 to discuss matters concerning interpersonal difficulties she had with her immediate Line Manager and she made no mention of a work related back injury during any of these meetings. It contends that at the meeting of 29 January, 2004 the complainant agreed to return to work but did not do so. The respondent states that the first time it was made aware of an alleged occupational injury was when she submitted a Risk Management Occurrence Form outlining the alleged injury on 6 February, 2004. The respondent states that it was aware the complainant was on sick leave and on 1 March, 2004, when she had not resumed duty, Ms. M wrote to her asking if her doctor could indicate when she might be fit to resume duty, in accordance with its normal practice. The respondent accepts that the complainant had a telephone conversation with Ms. X on 26 February, 2004 and states that the complainant was informed she could return to work if she had a medical certificate confirming she was fit to do so. The respondent states that following receipt of the complainant's letter of 5 March, 2004 and her Consultant Neurosurgeon's opinion of 4 March, 2004, the respondent wrote to her on 9 March, 2004 advising that it could not accommodate her return to work on "light duties" as there were no duties in the hospital which did not require some element of bending or lifting, adding that as her Consultant had suggested she would be fit to resume normal duties in 3-4 weeks, the respondent was prepared for her to remain on sick leave for that period (with full-pay) on the expectation that she would fully recover and resume her full range of duties by mid-April. It added that if she was unfit to resume by that time it would arrange a referral for her to an Occupational Health Specialist.
4.3 The respondent states that when the complainant did not resume her duties at the end of that period it arranged for her to attend an Occupational Health Specialist on 1 April, 2004. This Specialist reported to it on 22 April, 2004 stating that he "would be happy for the complainant to return to all her working duties without restriction or limitation". Following receipt of this letter the respondent (Ms. M) wrote to the complainant on 26 April, 2004 asking that she contact her to arrange a date for the complainant to return to work. The respondent states that the complainant did not reply to this letter and Ms. M wrote to her again on 7 May requesting the same information, acknowledging the complainant's reluctance to return to a position that involved manual handling and explaining that the respondent did not have any clinical departments which did not require nurses to perform bending and/or lifting. The respondent states that it received a letter from the complainant on 11 May, 2004 advising that she (the complainant) did not feel able to work in an environment that required heavy lifting, that her General Practioner was also of this view and that she was awaiting a further consultation with her Consultant Neurosurgeon. The respondent states that it replied three days later requesting a written report from her General Practitioner and advising that the matter could be discussed further on receipt of this report. The respondent states that the complainant tendered her written resignation on 15 May, 2004 with immediate effect. She did not resume duty.
4.4 The respondent rejects the complainant's allegation that it discriminated against her on grounds of disability when it failed to permit her to return to work on "light duties" following her absence from work in early 2004. It states that lifting and bending are integral elements of the complainant's job and that it was unable to remove that requirement totally from her daily routine as the hospital, which is a small private hospital caters for patients who require acute and palliative care and patients who have undergone spinal surgery, even with the provision of medical aids such as hoists and in any of the wards in the hospital and the complainant was seeking duties which did not entail lifting/bending at all. It adds that as a private hospital it does not have an out-patient's department where the complainant could have been temporarily re-assigned and it does not deal with administrative/clerical issues in respect of patients. It submits that the requirement to provide an employee with a disability with a reasonable accommodation does not extend to providing the employee with duties or tasks which the complainant was not originally recruited. In this regard it relies on this Tribunal's Decision in Gannon v Milford Care Centre . It further submits that given the medical opinion of the complainant's own Consultant Neurosurgeon that she would be fit to resume her normal range of duties in 3-4 weeks it was not unreasonable for the respondent to allow her to remain off work on full pay to allow her recover sufficiently to resume her duties.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is (i) whether or not the complaint was referred to this Tribunal within the timelimit provided at section of the Employment Equality Act, 1998 and is properly before me for investigation, and (ii) whether or not the complainant was discriminated against by the respondent on grounds of disability, in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 8 of that Act when, between February, 2004 and May, 2004, it refused to allow her to return to work following an absence due to a back injury and in doing so did not examine the possibility of furnishing her with reasonable accommodation, in accordance with section 16 of the Act, which would have allowed her resume duty. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 Before dealing with the substantive issues I must first address the point of whether the Tribunal has jurisdiction to investigate this claim. The respondent states that the complainant's referral form indicates the most recent occurrence of the alleged discriminatory act to have taken place in May, 2004 and submits that if that is the case the last possible date of discrimination is 14 May, 2004 - the date it wrote to the complainant requesting a written report from her General Practitioner and advising that the matter could be discussed further on receipt of this report. The complainant submits that the alleged discriminatory treatment continued until her period of notice expired. It is agreed by both parties that the complainant was required to give one months' notice to terminate her contract of employment. It is also accepted that the complainant furnished written confirmation of this notice on 15 May, 2004 which expired on 12 June, 2004. I note that the respondent continued to pay the complainant her salary until 12 June, 2004. I am therefore satisfied that the complainant remained an employee of the respondent until that date and it follows that any alleged discriminatory actions of the respondent continued to exist until that date. The complainant referred her complaint to this Tribunal on 23 November, 2004, which is within the six month time limit prescribed at section 77 of the Acts. I find therefore that the complaint is within time and properly before me for investigation.
5.3 I shall now address the substantive element of Ms. F's complaint. It is accepted by the respondent that the complainant's back injury constitutes a disability for the purposes section 2 of the Act. It is also agreed between the parties that the complainant was unable to perform the full range of tasks associated with the position she was recruited for i.e. nursing, due to this disability. I note that the entire period of the alleged discriminatory treatment occurred before 19July, 2004 - the date on which the Equality Act, 2004 came into force and therefore the legislative provisions applicable to the instant case are those included in the Employment Equality Act Act, 1998. Section 16 of that Act provides that a person with a disability must be considered fully competent and capable of performing the duties attached a particular post if s/he could do so with the provision of special treatment or facilities, provided the provision of such treatment or facilities did not give rise to more than a nominal cost to the employer. The nature and extent of an employer's duty to an employee with a disability was considered by the Labour Court in An Employer v A Worker (Mr. O) No.1 when it adopted the approach set out previously by that Court in An Employer v A Worker . The essence of the Court's decision in both instances was that Section 16 of the Act provides an employer with a defence to a claim of discrimination on grounds of disability, but that this defence could be negated where the employer fails to provide a reasonable accommodation to offset the effects of the disability. It went on to refer to the decision of the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge which found that "a proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the legislative duty imposed on it". The Court viewed this as "authority for the proposition that an employer must make adequate enquiries so as to be in the possession of all material information concerning the needs of an employee with a disability before taking decisions which are to the employee's detriment."
5.4 Whilst the complainant went absent from work immediately after the events in which she alleges she sustained the injury to her back she did not formally inform the respondent of this until 6 February, 2004 when she furnished it with a Risk Management Occurrence Form, notwithstanding that she had spoken with Ms. M on a number of occasions during the intervening period. I note that the complainant's Consultant Neurosurgeon had furnished a report on her (to her General Practitioner) on 18 February, 2004 in which he expresses the view that she was fit to resume work but should avoid excessive lifting and bending. I am satisfied that this prompted the complainant to seek a return to work on "light duties" when she telephoned the respondent and spoke with Ms. X on 26 February, 2004. I am further satisfied that she was informed she could not return to work on that basis. On 8 March, 2004 the complainant furnished the respondent with her Consultant Neurosurgeon's opinion of 4 March, 2004 in which expresses the view that "she would need to be careful and sensible when bending and lifting. It is possible that this could pose some restriction in her being able to return to work in a full-time capacity..... However, if she is able to manage relatively light duties for a 3-4 week period, then she could probably contemplate getting back to all her normal activities thereafter". The respondent's reply was that "it was not possible for you to return with restrictions to relatively light duties" and that she should remain on sick leave until early April, 2004 when it was expected, in light of the Consultant Neurosurgeon's report, that she would be in a position to return to full duties. It is clear therefore that the respondent refused the complainant the opportunity to resume work unless she was able to perform all of the duties attached to the post - a requirement she was unable to comply with because of her disability. Consequently, I find that she has established a prima facie case of discrimination on grounds of disability.
5.5 Section 16(1) of the Act provides the respondent with a defence to the claim if it can demonstrate that complainant would not have been capable of performing the functions attached to her post. This provision is however, qualified by section 16(3). The respondent states that it could not completely remove the requirement of lifting and bending from the complainant because it is an integral part of the post. It adds that as a small private hospital it is restricted in the options available to it as regards alternative duties. In addition, it does not have clerical positions available, where the complainant could have been temporarily assigned. The respondent seeks to rely on the Decision of this Tribunal in Gannon v Milford Care Centre to support its actions in this regard. The facts of the instant case can however be distinguished from those in Gannon. In that case the complainant suffered from a back injury which had the effect of her never being able to perform the full range of duties associated with the position of nurse at any future date - a fact which had been agreed by three separate medical assessments of the complainant. In the instant case the information upon which the respondent based its decision to have the complainant remain on sick leave was a medical opinion from her Consultant Neurosurgeon which indicated she was unfit for the full range of duties associated with the post for a period of 3-4 weeks. Having assessed the evidence presented I am not satisfied that the respondent gave adequate consideration as to how it might facilitate the complainant's return to work in late February, 2004, in light of the Labour Court Decisions mentioned at paragraph 5.3 above. Instead it unilaterally decided to keep her on sick leave and it cannot therefore rely on the defence available at Section 16 of the Act. In particular it could have sent the complainant for a second, independent assessment of her back injury, an approach it adopted a few weeks later. I note that by 22 April, 2004 it had a second medical opinion from an Occupational Health Physician which, in my view, concurred with that of the complainant's Neurosurgeon and I am satisfied at that stage it was reasonable to seek her return to work. It did so by letter of 26 April, 2004 and the complainant did not reply until 11 May, when she disagreed with the diagnosis and subsequently resigned. I find therefore that the respondent's exposure to liability for its failure to provide the complainant with a reasonable accommodation is restricted to the period between 26 February and 26 April, 2004. In reaching my conclusion I note that the complainant did not furnish the respondent with a copy of her Consultant Neurosurgeon's opinion of 18 February, 2004, or opinions of her Physiotherapist and Chiropractor until she referred her complaint to this Tribunal and this material was not therefore available to the respondent in making its decisions in relation to the complainant's request to return to work.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that -
(i) the complaint was referred within the timelimit prescribed at section 77 of the Employment Equality Act, 1998 and this Tribunal has jurisdiction to investigate it;
(ii) the respondent discriminated against the complainant on grounds of
disability, in terms of section 6 of the Employment Equality Act,
1998 and contrary to section 77 of that Act,
(iii) the respondent did not adequately examine the options
available to it to provide the complainant with a reasonable
accommodation in terms of section 16 of the Act and consequently,
it cannot rely on the defence available to it by virtue of that
(iv) the liability at (iii) above is restricted to the period between 26
February and 26 April, 2004.
6.2 I note that during the period mentioned at (iv) above the complainant received full pay until 15 April, 2004 when it reduced to 75% in accordance with the respondent's sick leave scheme. I am also conscious that the complainant delayed furnishing relevant material to the respondent and in some cases did not provide it with reports until the matter had been referred to this Tribunal. Taking these factors into account I consider it reasonable the redress is measured at €4,000 and in accordance with my powers under section 82 of the Employment Equality Acts, 1998 and 2007 I order that the respondent pay the complainant that amount. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
31 August, 2007