THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC – E2014-059
(represented by Leonora Frawley B.L. instructed by KOD Lyons Solicitors)
Health Services Executive
(Respresented by David McCarroll, RDJ Glynn Solicitors)
File reference: EE/2012/423
Date of issue: 13th August 2014
Keywords: Employment Equality Acts, Disability, Failure to provide reasonable accommodation, retinal detachment, No prima facie case
1.1 The case concerns a claim by Ms B against an Out-Of-Hours GP service run by the HSE. Her claim is that she was discriminated on the grounds of disability because the respondent failed to provide appropriate measures for her disability within the meaning of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’].
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 2nd August 2012. On 26th February 2014, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 4th March 2014 as required by Section 79(1) of the Acts.
Summary of the complainant’s case
2.1 The complainant commenced employment with the HSE in 2000. She voluntarily transferred to the Out-of-Hours GP service in 2004. The nature of the work involved unsocial hours i.e. the Out-of-Hours service is open when General Practice surgeries are not. She is a Call Handling Coordinator (CHC). Her duties involve taking calls, preparation of the doctors’ rota and inputting consultation sheets. Occasionally Ms B did relief administrative work during the normal working hours i.e. the typical office hours Monday to Friday.
2.2 In April 2010 Ms B was diagnosed with a retinal detachment - an eye condition requiring urgent surgical intervention. Ms B worked the weekend following her diagnosis and then went on sick leave. As a result of complications, she lost sight in her right eye. She was unable to return to work until 28th June 2010. Her surgeon said he would give her a medical certificate for longer but because she was conscientious she went back to work on 28th June. Ms B lives approximately 30 km (on bad roads) from her place of work so she made a request to her supervisor Ms Z [General Manager of the Out-Of-Hours service] to work on the day shift because, she submits, she was nervous about night driving.
2.3 Ms Z asked her to self-refer to the Occupational Health Specialist [OHS]. For various reasons, she did not get to attend the OHS until the following October. She acknowledges that she was accommodated with work mainly on days up to the appointment. The OHS advised ‘avoiding night work for six months to allow accommodation of eye condition’. While she was mostly working the day shift she occasionally was asked to work the evening shift (18:00 to 00:00). She submits that when she raised this issue, Ms Z said to her that she should take the bus to work. Ms B also submits that she was not allowed to take five minute screen breaks every hour as recommended by the Occupational Health Nurse. In July 2011 Ms B received a diagnosis that her sighted eye had disimproved slightly. Understandably this caused her anxiety. Through her trade union, she requested to either work in the Administrative day office on a full-time and permanent basis or on the Out-of-hours roster with no nights on a full-time basis.
2.4 Ms B was asked to work days while an other staff member was absent on long-term sick leave but Ms B refused as it was a conditional offer and she submits that she would have to move back to the out-of-hours roster when this person returned or when the permanent position was filled.
2.5 Her GP sent a formal request on 14th May 2012 that ‘night shifts at [respondent] be reduced’. Ms B was dissatisfied with the response:
Dear Dr O,
I have forwarded a revised roster to the union of the out of hours clerical staff under the Public Service Agreement for implementation. This roster involved a reduction in the overall number of nights for all staff on the roster. I will also raise Mrs B’s request with other staff on the roster as part of the consultation process.
2.6 Because of the difficult working relationship with Ms Z the complainant submitted a medical certificate citing work related stress as the reason for her absence in September 2012. Following this Ms B maintains that notification requiring the complainant to attend a meeting with the OHS was sent to Mr B’s [husband] email and mobile phone. A letter was also attempted to be dropped in by a vehicle with the respondent’s logo which she submits was a bullying tactic.
2.7 Ms B submits that an other staff officer was facilitated with being moved to days because she was the single mother of an adopted child. Ms B submits that a request for reasonable accommodation on the disability ground should trump other requests.
2.8 Ms B submits that she has been mistreated by a verbal warning not being removed from her personnel record after three months. She submits that Ms Z harassed her by saying Goodbye to the complainant only (i.e. she did not salute anybody else) on 2nd November 2012. The complainant cites Rattigan v Connacht Gold Co-operative Society and A Health and Fitness Club v A Worker:
This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions
Summary of the respondent’s case
3.1 While the Out-Of-Hours service is a separate legal entity, Ms B is employed by HSE so the respondent readily concedes that the complainant has named the correct respondent.
3.2 The respondent acknowledges the complainant was conscientious about keeping in touch following her eye operation in April 2010. Ms Z asked her was she fully fit to return to work before she returned on 28th June. Ms B said she was but asked that Ms Z not to share her disability with the other staff and that she be accommodated in the Day Administration Office initially. The respondent maintains that the reason Ms B gave for this is that she had a bad working relationship with her colleagues on the Out-of-Office roster not because of her disability. Despite it not being a request for appropriate measures within the meaning of Acts, the respondent accommodated her in allowing her to work in the Day Office in the short-term.
3.3 Ms Z freely acknowledges that she encouraged Ms B to self-refer to the Occupational Health Department as well as expressing concern that Ms B return to work full-time after her trauma. Ms Z vehemently denies ever suggesting Ms B take the bus to work. She submits that she too lives in a rural area with limited public transport also so it simply is something that she would never say.
3.4 The respondent reiterates that the complainant did not specifically seek reasonable accommodation because of her disability when she returned to work in June 2010. In this context, Ms Z explained that she was only being accommodated in the short-term. Call Handling Co-ordinators carry out a designated supervisory role during out-of-hours shifts. Normally they work on a 6 person roster. Due to a part-time person going on long-term sick leave, if the complainant was to be accommodated with only weekdays the roster would be reduced to 4.5 people which would obviously have an impact on the other CHCs.
3.5 Ms Z submits that she explained this to Ms B and it required significant juggling to accommodate her during the week with work in the administrative office and no red-eye shifts. She submits that Ms B seemed very content with this arrangement and raised no objections. In August 2010 due to changes in service needs the CHCs (including the complainant) were given an opportunity to draw up a roster. They were unable to devise one due to acrimony.
3.6 Once the respondent received the recommendation form the Occupational Health Specialist on 20th October 2010 that Ms B was ‘fit for work: advise avoiding night work for 6 months to allow accommodation of eye condition’ the respondent adhered to it strictly. Regarding the breaks the respondent points out that there is no mention of this on the aforementioned report. Nor, Ms Z maintains, was it mentioned to her by Ms B. Ms Z submits that she would not expect people in a supervisory role to seek permission for a break from a computer i.e. she would expect supervisors to have the common sense to avert their eyes from the screen when necessary. Ms Z submits that the CHC role does not require excessive screentime. The average number of calls per hour is eight. It takes approximately ninety seconds to log the call onto the computer. Therefore the respondent maintains that there are plenty of opportunities for natural breaks from staring at the computer screen.
3.7 Due to the failure of the CHCs to devise a roster, Ms Z had to design one in January 2011. In the roster, the complainant was rostered for the day office and alternate weekend dayshifts. The other CHCs were annoyed at this as Ms B was exempt from the red-eye shifts but still had access to the lucrative Sunday day-shifts. Ms Z held her ground and said the respondent was obliged to provide reasonable accommodation for a disability if medical evidence was supplied. Even after the six months had elapsed the respondent continued to honour the recommendation by giving Ms B predominantly dayshifts.
3.8 Ms Z thought Ms B would be delighted when a three month vacancy in the Day Administration office emerged in July 2011 which meant that Ms B could work all week days but Ms Z was surprised that Ms B was not. Ms B complained that it was disruptive to work some weekdays and some weekends. She had not complained previously. Ms B requested to be put back on the Out of Hours roster i.e. that she no longer required the reasonable accommodation of no night driving. Ms Z said she could not do that immediately as the administrative day job was more urgent and, in the absence of volunteers, she directed Ms B to do it as Ms B was familiar with the work there. The respondent contends the real reason behind this is that Ms B was receiving less in her take-home pay as the red eye shifts, for obvious reasons, attracted premium rates of pay. Ms B was moved back to the Out-of-Hours roster six weeks after her request.
3.9 On 31st August 2011 Ms B applied for a transfer. She was offered one but turned it down and remains on the transfer list.
3.10 Regarding Ms B being disciplined in January 2012, the respondent does not deny that this occurred – Ms B was found lying in a sleeping bag on the floor during a red-eye shift. The respondent submits that this is gross misconduct and she is fortunate that she merely received a verbal warning as the sleeping bag would indicate pre-meditation. A triage nurse was also reprimanded for falling asleep at the desk on the same night. The respondent submits that this is unacceptable as CHCs are the first point of contact for patients. The respondent is adamant that this verbal warning has been removed from her personnel file.
3.11 The respondent does not deny that a jeep branded with the respondent’s logo attempted to drop letters inviting Ms B to attend the Occupational Health Specialist which requires a signature to prove receipt. This is standard practice for urgent letters with the respondent as it is cheaper than using a courier or taxi and the complainant would be aware of this practice. The respondent vehemently denies attempting to contact her on any phone number or email address other than what they have on record.
3.12 Even after the six month period stipulated by the Occupational Heath specialist of no nights Ms B did merely twelve evening or ‘red-eye’ shifts which represented less than 5% of her hours worked. This meant the other CHCs were rostered for seven nights in every six week period.
3.13 Regarding her colleague being accommodated before her, this colleague was on the transfer list for three years. Ms B never formally sought a transfer to days and when she was put on days, she protested vociferously.
3.14 When a letter came from her GP in May 2012 requesting reduced nightshifts, Ms B’s night shifts were reduced as requested.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the respondent failed to provide reasonable accommodation in order to enable her to continue to work with the respondent In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.
4.3 In cases like this where there is significant dispute of facts, it is usually decided on the balance of the evidence adduced, which side is the most credible. Losing eyesight in one eye can only be a traumatic experience. I will not speculate on whether this trauma was a factor in the complainant embellishing her evidence to the point of disingenuity. An example of this is her suggestion that Ms Z told her to get the bus to work. This Out-of-Hours service is located outside the capital. One does not need to be an expert in rural geography or public transport timetables to be aware that it is a logical impossibility to commute to work by public transport during unsocial hours outside of Dublin. To suggest that a senior manager who also lives in a rural area would say such a thing is implausible.
4.4 Disability is defined in Section 2 of the Acts:
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
c. the malfunction, malformation or disfigurement of a part of a person’s body
d. a condition or malfunction which results in a person learning differently form a person without the condition or malfunction
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.
4.5 I am satisfied that retinal detachment leading to blindness in one eye is a disability within the meaning of the Acts.
4.8 I will now turn to ‘reasonable accommodation’. Section 16 of the Acts states:
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
(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
(iii) the possibility of obtaining public funding or other
(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; [my emphasis]
I find that the respondent acted prudently in relation to the provision of appropriate measures. I prefer the respondent’s evidence that Ms B sought to move to daytime duties initially because of the acrimonious relationship she had with the other CHCs. Ms Z showed concern for Ms B’s welfare by asking whether she felt able to return to work and suggesting that she attend the Occupational Health Specialist. The HSE interpreted ‘reasonable accommodation’ in a generous way i.e. they did not say how an employee gets to work is none of their business but acknowledged the defacto situation that in an Out-of-Hours service in the area where it is located, night-driving is required to commute to work. Documentary evidence was submitted to show that the recommendation by the OHS was adhered to strictly. This caused industrial relations issues for the respondent as the other CHCs were resentful that Ms B did not do the unpopular red-eye shifts which meant they had to do more of them. Even after the six months had expired the respondent adhered to the spirit of the recommendation and Ms B was rarely required to work evening or red-eye shifts. Six weeks after she requested that the appropriate measures be discontinued, she was accommodated on the more lucrative Out-Of-Hours roster. When her GP requested a reduction in night-shifts in 2012, that too was implemented. Regarding the screenbreaks, this fits into the category of Section 16(4)(c) i.e. the employee has to take some responsibility for her own wellbeing.
4.9 In fact, the HSE is to be complimented on its efforts to provide and protect reasonable accommodation to the complainant in a time of budget cuts, reduced headcount and industrial relations issues. This case can be distinguished from the cases cited by the complainant as she has not been dismissed; she remains an employee of the respondent. For all of these reasons, the complainant has failed to establish a prima facie case of discrimination on the ground of disability.
I have concluded my investigation of Ms B’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the respondent has not failed to provide appropriate measures to the complainant
Therefore, I find against the complainant.
 DEC E2008-026