EMPLOYMENT EQUALITY ACTS 1998 to 2011
DECISION NO. DEC-E2015-166
(Represented by David O’Regan B.L., instructed by Carmody & Company Solicitors)
The Health Service Executive
File reference: EE/2014/280
Date: 23 December 2015
1. The Claim
1.1 This dispute concerns a claim by Julie Crowe (hereinafter the “Complainant”) in which she claims discrimination by reason of gender, civil status, family status, sexual orientation and disability and as a result she claims she was treated unlawfully by discrimination in getting a job, promotion, training, conditions of employment, victimisation and failing to give reasonable accommodation for a disability against the Health Service Executive (hereinafter the “Respondent”) contrary to the Employment Equality Act 1998 - 2011 (hereinafter the “Acts”).
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 19th May 2014 under the Acts. In accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Caroline McEnery, 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation we informed both parties by letter sent registered and ordinary post on 11th August 2015that we had scheduled a hearing for 29th September 2015. The Complainant did attend the hearing and was represented. The Respondent attended the hearing also.
1.3 At the outset of the hearing the Complainant withdrew the following aspects of the claim namely discrimination on the grounds of marital status and disability and not receiving promotion and getting a job.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 Background To The Claim
2.1 The Complainant was employed from 11th February 2002 by the National Ambulance Service West of the Respondent as a Paramedic. The Complainant remains an employee of the Respondent.
2.2 In January 2012, the Complainant suffered an injury at work during a road traffic accident when she was driving an ambulance during the course of her work. In November 2012, the Complainant was further injured during the course of her employment while supporting a patient.
2.3 The Complainant claims that she was treated differently to her co-workers as a result of her sexual orientation which manifested in a delay in receiving the benefit of the Injury at Work Scheme and as a result suffered financial hardship. The Complainant was afforded the benefit of the Scheme on both occasions, however there was a time delay involved.
2.4 The Complainant claims that she was discriminated against by the Respondent by failing to place her on modified duties to reasonably accommodate her disability.
2.5 The Complainant claims that she was discriminated by not being given Manual Handling training and as advised by the Doctor.
2.6 It was the Respondents case that the employee was not discriminated against on the grounds of sexual orientation as it was never a relevant factor in any decision nor was it referred to by the Respondent. Any issue with the payment of injury at work benefit was resolved albeit delayed.
3. COMPLAINANT’S SUBMISSION
It is the Complainant’s case that she was the subject of discrimination on the grounds of sexual orientation and disability and as a result she claims she was treated unlawfully by discrimination in receiving training, conditions of employment, victimisation and failing to give her reasonable accommodation for a disability. The Complainant states that she is the only openly gay employee with the Health Service Executive Ambulance Service in the Mid-Western Area.
B. Sexual Orientation
The Complainant submits that she was the only openly gay employee in the particular geographic area in the Ambulance Service that she is aware of. At the hearing of the case it was submitted that the Complainant made her colleagues aware of this from the time she commenced her employment with the Respondent. She stated that she invited a senior colleague, RT to her civil partnership in March 2012 with a group evening invite sent to all her colleagues.
At the hearing of the case the Complainant presented comparators who she believes she was treated differently to as a result of her sexual orientation.
· DS was a paramedic who was not gay. She was put on light duties while she was pregnant in an Accident and Emergency department. DS presented at the hearing as a witness for the Complainant.
· MB attended as a witness at the hearing was also a paramedic and was not gay. Following an elbow injury was given light duties in an Accident and Emergency department and the control room.
· JR presented as a witness at the hearing was given alternative administrative duties in the control room. He is not gay.
· GM was a paramedic who was not gay and put on light duties when she was pregnant in an Accident and Emergency department.
· JM was a paramedic who was not gay and put on light duties when she was pregnant.
· TH was given light duties. She was not gay.
· CMcC was not gay and a paramedic who was given light duties as a result of a medical diagnosis.
· SMcE was not gay and a paramedic who was given light duties as a result of a medical diagnosis.
C. Reasonable Accommodation
The Complainant contends she ought to have been given reasonable accommodation at work by the Respondent following a medical report dated 14th May 2012 from Dr. S of Occupational Health Department who recommended that she return to modified duties which did not involve manual/patient handling for the first 6 – 8 weeks with a view to considering a return to usual duties.
On the 16th July 2012 the Complainant had a return to work meeting with DH of the Respondent where she stated at the hearing that she informed him the only reasons she was returning to work was because she had no money. The Complainant was not given modified duties upon her return to work.
On the 21st August 2012 Dr. F of the Occupational Health Department recommended that the Complainant return to work on altered hours and that she undertake a refresher manual handling course. The Complainant did not receive training or altered working hours.
It is the Complainant’s case that it was not until she engaged her solicitors that she was offered accommodation when the Respondent offered to facilitate her under the HSE rehabilitation back to work programme for three months with administration duties. This decision came in a letter from the Operations Performance Manager dated 25th June 2014. This was refused by the Complainant’s solicitor in a letter dated 4th July 2014 which enclosed a medical note from her GP, which stated that control room duties would not be conducive to rehabilitating her back into full time work as a paramedic. It was noted at the hearing that the Complainant submitted the control room duties would require her to relocate to Dublin in November 2014. Therefore was not a viable offer.
Dr. M, Specialist Occupational Health Physician, in his report dated 10th July 2014 stated the Complainant was fit for a phased return to a modified role avoiding in particular pushing or pulling large loads, manual handling, repetitive bending and stooping and working in awkward or confined spaces.
The Complainant was again offered administrative duties by the Operations Performance Manager in a letter dated 28th August 2014. This was refused by the Complainant in a letter from her solicitor dated 8th September 2014. The letter stated that the Complainant was extremely reasonable and willing and looking for work with the Respondent but no real or genuine offer or suggestion had been forthcoming from the Respondent in relation to her returning to lighter duties.
S.16 (2) of the Acts sets out the nature and extent of the employer’s obligations in certain cases and in particular where the employee is fully capable to return to work with the provision of reasonable accommodation.
It was the Complainant’s submission at the hearing that the last paragraph of the Respondent’s written submission amounts to victimisation.
The Complainant submitted that the Respondent accepted that it victimised her pointing to its written submission. The Respondent states in its submission that as a result of the ongoing litigation it stopped engaging with the Complainant but would now re-engage in a manner consistent with other long term absent staff.
In Dr. F’s medical report it is advised that the Complainant undergo a refresher manual handling course. This training was not arranged for the Complainant by the Respondent.
S. 8 (c) of the Acts provides that an employer shall not discriminate against an employee in relation to training or experience for or in relation to employment.
F. Conditions of Employment
S. 8 (b) of the Acts provides that an employer shall not discriminate against an employee in relation to conditions of employment.
4. RESPONDENT’S SUBMISSION
The Respondent’s submission is that the Complainant was not discriminated against on the grounds of her sexual orientation.
The Respondent stated that the Claimant was not discriminated against on the grounds of disability but acknowledge the administrative delays processing her illness benefit.
B. Sexual Orientation
The Respondent’s submission is that the Complainant was not discriminated against on the grounds of her sexual orientation.
The Respondent referred to the decision in Piazza v Clarion Hotel (DEC –E2004-033) andAn Employer v. A Worker (EAD0916) and distinguishes them from the Complainant’s case. It was submitted that it was not aware of the Complainant’s sexual orientation until it was raised by her and therefore was never a relevant factor in any industrial relations or contractual decision.
It was clarified at the hearing that Mr. O’R and Mr. M were new to the management team since September 2013 and were not aware of the Complainant’s sexual orientation.
In response to the comparators presented by the Complainant, the Respondent replied as follows:
· The evidence of the Complainant’s witness DS who stated she was given light duties during her pregnancy by the Respondent and this was accepted by the Respondent. The Respondent clarified that the light duties were as a result of a Labour Court recommendation which was confirmed by the witness at the hearing. The Respondent submitted that pregnant employees were not relevant comparators to an employee on sick leave.
· MB worked an Accident and Emergency department for 4-5 months on light duties as a care attendant on the advice of Occupational Health Department. He had a second accident in November 2014 and was recommended to return on light duties but the Respondent was unable to facilitate this. MB had to wait until he was 100% fit before he could return to work.
· JR was not a paramedic and therefore was not a relevant comparator.
· GM and JM were pregnant and subject to Labour Court recommendation.
· TH no reply
· CMcC no reply.
· SMcE not a relevant comparator as she took voluntary redundancy due to her illness.
C. Reasonable Accommodation
The Respondent submitted that based on the recommendation of the Occupational Health Department that the Complainant return on modified / lighter duties but such accommodation was not available to Complainant or any other paramedic. There is no proof that any assessment or consultation with the employee occurred to confirm this assertion and no options were presented to the employee.
The Respondent stated in its’ written submissions that there were currently 12 staff on long term absence in the Complainant’s region, none of which were on light duties or accommodations nor are there any plans in place for same. On this basis the Respondent could not see how the Complainant was under a disadvantage compared to her other 11 colleagues.
The Respondent responded to the Complainant’s submission at the hearing of the case by stating the Respondent was willing to re-engage with the Complainant.
It was medically advised in Dr. F’s medical report the Complainant undergo a refresher manual handling course. No submission was made on behalf of the Respondent in response to this claim.
F. Conditions of Employment
It was accepted by the Respondent that there was delays in processing the Complainant’s payroll benefits. The Respondent does not accept that these delays had anything to do with any grounds of discrimination. It was submitted by the Respondent that the payments were made until the end of 2015 and this point has been dealt with by the Rights Commissioner previously.
5. FINDINGS AND CONCLUSIONS
In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.
Having carefully considered the facts of this case I have to decide if there was failure on the part of the Respondent to provide reasonable accommodation and training to the Complainant and furthermore, if the Complainant suffered discrimination and victimisation as a result of her sexual orientation and disability.
Burden of Proof
S. 85A (1) of the Acts states:
“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.”
Consequently, the Complainant must establish primary facts upon which the claim of discrimination and the burden of proof passes to the Respondent.
S. 6(1) of the Acts provides:
“Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”, one person is treated less favourably than another is, has been or would be treated.
S. 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, civil status, religion, disability, race or a member of the traveller community.
The Complainant claims that she was discriminated on the grounds of sexual orientation, disability and in particular for not receiving reasonable accommodation, victimisation, training and her conditions of employment pursuant to the Acts.
There was a significant delay, which is unacceptable, in providing the Complainant with her Injury at Work payment. This payment has now been addressed by the Respondent and sufficiently dealt with under the Payment of Wages Act 1991 claim by the Rights Commissioners.
S. 2 of the Acts defines a disability as:
“(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 from a person without the condition or malfunction, or
(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,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”
I have found that based on the medical evidence presented by the Complainant her injuries fall within the definition of s. 2 (c) of the Acts.
S. 2 of the Acts defines sexual orientation as: -
“Sexual orientation” means heterosexual, homosexual or bisexual orientation;
Section 6 of the Acts states:-
6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
It is accepted that there was a significant delay, which is unacceptable, in providing the Complainant with her Injury at Work payment. However, this payment has now been addressed by the Respondent and sufficiently dealt with under the Payment of Wages Act 1991 claim by the Rights Commissioners.
In these circumstances I conclude that the complainant has not established a connection between this delay and her sexual orientation and I therefore find that the Complainant has not established a prima facia case for discrimination on the grounds of sexual orientation.
S. 16 (3) of the Acts sets out the nature and extent of the employer’s obligation to provide reasonable accommodation in the circumstances where an employee has a disability:
“(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
The medical evidence provided to the Respondent by its Occupational Health Department in reports dated 14th May 2012, 21st August 2012 and 10th July 2014 advised of modified working duties and/or reduced hours and refresher training. The Respondent did not seek to offer the Complainant an alternative position in the regional control room until the 25th June 2014. This offer was made after a significant amount of time had passed from when the Complainant was first certified unfit for work in January 2012 and the alternative position in June 2014. There is no evidence that the Respondent consulted with the Complainant or did a review / assessment prior to June 2014 to reasonably accommodate her return to work on lighter/modified duties.
On the 27th June 2014 the Complainant’s GP deemed the control room position unsuitable for her. It was accepted by the Respondent at the hearing that this position was only available until November 2014 when the office closed and was relocated. Alternative duties were again offered on the 28th August 2014 by the Respondent but no details were provided. Clarification was sought from the Complainant by letter dated 8th September 2014 as to what the position was and how long she was going to be undertaking the duties as well as clarification around the rehabilitation programme.
It is also noted that the Complainant specifically requested on numerous occasions between May and June 2012 not to attend Dr. S as she felt uncomfortable with his line of questioning. This accommodation request was ignored by the Respondent. However, on the 12th July 2012 that as a result of her failure to attend Dr. S it was not in a position to progress her Injury at Work Scheme payment.
While it was stated by the Respondent that light duties cannot be facilitated for paramedics it was later undisputed at the hearing that the Respondent had previously made accommodations for pregnant employees in line with Labour Court recommendations.
When the Complainant returned to work in July 2012 she was not accommodated as advised by the Respondent medical practitioners despite being expressly acknowledged by letter dated 12th July 2012 by the Respondent. Similarly, following her additional reviews in August 2012 the Complainant did not offer alternative accommodation or refresher training in manual handling or altered hours or modified duties. When clarifications were sought from the Complainant’s solicitor by letter dated 8th September 2014 as regards what was been offered there was no engagement from the Respondent. Therefore, the Respondent failed to take steps to accommodate her disability.
I therefore conclude that the Complainant has established a prima facia case that she was the subject of discrimination by the Respondent by failing to give reasonable accommodation for a disability and the respondent has failed to rebut this case and I find that this amounts to a failure to provide reasonable accommodation in accordance with section 16 (3) of the Employment Equality Acts.
S. 74 of the Acts states:
“(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).”
When the Complainant made a complaint of discrimination the adverse treatment she complained of was that the Respondent stopped engaging with her. The Complainant submitted that the Respondent accepted that it victimised her pointing to its written submission. I have concluded that the Complainant was victimised by the Respondent by failing to engage with the Respondent due to ongoing litigation after she had made a complaint of discrimination
S 16 (1) of the Acts state:
16.—(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.
It was the medical advice of the Respondent’s own Occupational Health Department that the Complainant should undergo a refresher manual handling course in August 2012. This was not provided to the Complainant and in November 2012 she sustained an injury while lifting a patient.
Particular note has been taken of the Complainant’s submission that she had no option but to return to work in July 2012 and this was expressed to the Respondent. Consequently, there was a greater onus on the Respondent to ensure that when she was not given light duties that she was given full training to ensure she was capable of undertaking the duties attached the her position, i.e. manually handling of patients.
I find that the Complainant has established a prima facia case that she was the subject of discrimination by the Respondent by failing to give refresher training in manual handling.
Conditions of Employment
There was a significant delay, which is unacceptable, in providing the Complainant with her Injury at Work payment.
The Complainant has not met burden of proof and therefore, I have not found that the Complainant was discriminated against as this payment has now been addressed by the Respondent and sufficiently dealt with under the Payment of Wages Act 1991 claim by the Rights Commissioners.
7.1 I have investigated the above complaints and make the following decision in accordance with the relevant sections of the Acts set out above and the following are my conclusions:
· I find that the respondent has failed to provide the complainant with reasonable accommodation contrary to s. 16 (3) of those Act and discriminated against her on the grounds of disability in relation to training. In measuring the quantum of compensation I have hadregard to all of the circumstances of the case including the distress which she suffered in consequence of the discrimination together with the requirement to make an award which is effective, proportionate to the wrong suffered and is dissuasive. In accordance with section 82 of those I award the complainant €10,000 in compensation for the adverse treatment suffered;
· I also find that the Respondent did victimise the Complainant in terms of section 74 (2) of the Employment Equality Acts 1998 – 2008. In measuring the quantum of compensation I have had regard to all of the circumstances of the case including the distress which she suffered in consequence of the victimization together with the requirement to make an award which is effective, proportionate to the wrong suffered and dissuasive. In accordance with section 82 of those I award the complainant €8,000 in compensation for the adverse treatment suffered.
7.2 I am satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable I order the Respondent to pay the Complainant a total of €18,000 in compensation. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and victimisation and does not include any element relating to remuneration and is therefore not taxable.