ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024112
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 13/11/2019
Workplace Relations Commission Adjudication Officer: Janet Hughes
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant is employed by the Respondent as a Social Care Assistant since 2004. Her hours of work are 22 per week at a salary of €21255 per annum. She is employed on nights. Her hours when on duty in the location to which she transferred in March 2019 are 10 pm to 9 am. The requirement to work to 9am is a core issue within the matters brought for adjudication.
In her complaint form, the following issues are cited as obligations on the respondent following from the application of the Organisation of Working Time Act 1997:
‘The night worker should not work more than an average of 8 hours in a 24-hour period-the average should be calculated over a two-month period.’
‘If the night work involves special hazards-physical or mental strain, then the working hours cannot exceed 8 hours in a 24-hour period.’
‘The respondent is required to carry out a risk assessment to determine if there are special hazards’
‘The Act provides for minimum rest periods during the working day: 15 minutes after 4.5 hours worked-30 minutes after 6.0 hours worked.’
Reference is made to Part 6 of the Safety Health and Welfare at Work Act (General Application) Regulations 2007-outlines the steps that the respondent must take to ensure the health and wellbeing of night workers:
‘Risk assessment-before employing a person to do nightwork and at regular intervals which the employee is a night worker the respondent is required to make an assessment of the effects on the health of the employee.’
‘Medical assessment – before employing the night worker and at regular intervals to consider adverse effects of night work.’
‘If the night worker becomes ill as a result of night work, the respondent should assign duties that do not involve night work, and which are suited to the employee.’
There is no dispute that the Complainant is a night worker. The respondent confirmed that there are no issues regarding time limits in respect of the bringing of the case.
Date of Receipt of Complaint: 12/09/2019
Summary of Complainant’s Case:
The Complainant states that she accepted a transfer from another night work post in the service to her current post understanding that the hours of work were 10 pm to 8am. When she commenced in the new location, she was informed by another member of staff that the shift did not finish until 9am and that there were morning duties to be carried out. These duties involved showering, feeding and giving medication to a service user with limited mobility. She found the duties challenging. Following the completion of the shift she had to drive twenty miles home. She met with a manager on 7/5/2019. This was followed by a further meeting with two managers on May 17th. She informed the managers that she has vertigo; she informed them of her difficulty with the extra hour and the work in the morning and that she was not told about this hour and the duties until she reported for work. She felt her concerns were not taken seriously. The rota was changed prior to this meeting because of staff concerns. It was a three-week cycle with three staff and one on night duty. During the week commencing March 23rd, 2019 she was rostered to work five consecutive nights. The rota was subsequently changed to two nights per week followed by a break. She maintains that she was made to feel unreasonable in her complaints and that other staff had no complaints. The only suggestion made to assist her with the work she found difficult i.e. active work with the client in the morning, was that she would shadow other staff during the showering procedure. A safety assessment by the safety officer was rejected by the complainant at the hearing adding that it did not address the length of the shift without a break. The Complainant was sent for an Occupational Health Assessment which was organised for 11am on a morning when she came off shift.
There was no consideration given to transferring her to day work where her illness is related to nightwork.
At the hearing of the complaints, it was contended that the work required of the Complainant represented special hazards for the purposes of the Act of 1997 and the related Regulations.
The Complainant had a pre-existing medical condition(vertigo) which the respondent was aware of.
From Saturday 23rd March to Wednesday 27th March 2019 the Complainant worked five successive nights.
The Respondent had failed to provide records of working hours and breaks in response to requests under the Data Protection Act.
Compensation was sought by way of remedy.
Summary of Respondent’s Case:
The Respondent provided the Complainants actual work schedule for the period March 18th to June 10th, 2019. It was submitted that breaks could not be taken during the shifts due to the nature of the work. Thus, no records could be provided which showed these breaks being taken. This is the Disability Sector and it is recognised nationally that there can be a difficulty in providing employees with the statutory breaks during shifts. In this case, compensatory periods are provided between the shifts to allow for the fact that breaks cannot be taken during the working time. The role of night duty staff on the shift did require monitoring of a new resident every fifteen minutes but this was changed to thirty minutes after a review. The Respondent contended that the requisite compensatory periods are evident from the shifts worked by the Complainant where all breaks between the ending of one shift and the starting of another were as a minimum 13 hours in most instances and well in access of that figure in others.
The Respondent rejected the contention that the work of the Complainant represents a special hazard for the purposes of the legislation. The work required of the Complainant is part of the role of a care support staff member and she was in the employment performing similar duties for many years.
The Complainant was not new to night work when she was assigned to an agreed location in March 2019. She worked night work in an assignment given as commencing January 2017 and finishing in June 2018 when she transferred to day duties. When a supervision meeting took place with the Complainant on May 9th, the issues she raised related to the work required of her in the morning and the 9am finish. She raised the matter of her vertigo, struggling with feeding and administering medication to the service user. She requested a move to another area that had night work and was advised that the area to which she sought to transfer could not provide an ongoing 22 hours per week.
Following on from this meeting, the following actions were agreed:
The complainant to follow up with her GP in relation to her vertigo;
Arrange for her to shadow one of the other staff members;
Engagement with Health and Safety to review the shift and compliance with Health and Safety Regulations. Following this assessment, the Health and Safety Manager concluded:
‘Certain practical measures needed to be put in place;
He noted that there is only one feed on this shift and additional medications have been moved to the duties of the next shift;
The shift is in operation for 2 consecutive nights per week and then break for 5 days which is well within the parameters of the Working Time Act. This shift is in operation for 7 days a week by other staff and no concerns have been expressed here.’
An Occupational Assessment was arranged. The conclusion from that assessment was ‘that I do not feel any particular aspect needs to be restricted at this time.’
She did recommend a Specialist review. In conclusion there was a recommendation that there be a meeting with HR to address the employees concerns regarding the morning portion of her duties ‘as these seem to be her main area of concern.’ The Complainant subsequently disputed the accuracy of the Occupational Health Report dated 9 June 2019, in response to which the Occupational Health Physician replied that as there was no new information provided by the employee she did not have any amendment to make.
The complainant went out sick on June 14th, 2019 and has not returned since.
The respondent sought to meet with the Complainant but was advised by her representative at the hearing that she remained out sick on certified sick leave. In correspondence dated July 19th he accused a named manager as harassing his client and if the harassment continued a case would be taken against her under the Health Safety and Welfare Act,2005 as the individual responsible for bullying and harassment. This allegation of bullying is rejected and in any event is not before the Adjudicator under the Organisation of Working Time Act,1997.
Findings and Conclusions:
Average hours of night work:
The reference period for establishing if a night worker has worked an average of more than 8 hours in a twenty-four-hour period is two months. Having reviewed the hours worked by the Complainant in the period 23 March to 22 May 2019,not including any periods of leave, I find that the complainant did not work more than an average of eight hours in a twenty-four-hour period in the two months reference period stipulated in the legislation.
Special Hazard Work
The Complainant contends that the work she is required to do on the night duty roster she commenced on March 23rd, 2019 represents a special hazard and therefore her night duty hours should be set at an absolute limit of eight hours. Accepting that the complainant did not expect to work eleven hours, that is to say that she expected to finish at 8am and not 9am as it transpired, nor did she expect to have the duties associated with a particular client in the final hour or hours of her shift, it is found that those duties do not represent a special hazard. Rather it is found that the work, while difficult for the complainant, falls within the normal range of duties of a care worker in the disability sector. Furthermore, there is no medical evidence from the complainant that the work in question represented a special hazard to the complainant in light of her medical condition or at all. The review by the health and Safety Manager may not be acceptable to the complaint but it is the only evidence available of an assessment, other than her opinion. Accordingly, the claim that her night duties should have been restricted to an absolute limit of 8 hours on the basis of a special hazard and that the respondent breached the related legislation, cannot be regarded as valid.
The respondent has accepted that there are no established breaks during the night shift in the case of the Complainant and this is evidenced by the sleep chart presented at the hearing. There are no records of breaks taken during the shift quite simply because there is no system for taking rostered, recordable breaks. From this submission by the respondent, the onus is on them to satisfy the requirement that there are compensatory breaks to cater for the absence of breaks during the night shift. While it is regrettable that the Respondent did not formally notify the complainant of how her statutory entitlements to breaks are met, the roster of hours worked and breaks between rosters show that on each occasion the complainant received a break in excess of the minimum 11 hours rest periods required. It is accepted that the complainant received the required compensatory rest periods.
Medical Assessment for night duty.
There is an absolute, unqualified obligation on the respondent to carry out a medical assessment before employing an employee on night duty. There is no evidence that such an assessment was conducted in the case of the complainant. It was submitted that the complainant was previously employed on night duty. The record provided by the respondent and confirmed by the Complainant shows that, prior to her transfer to the role in the service in March 2019,the complainant last worked night duty in 2018. The question arises whether, having employed the complainant previously on night duty and given that the transfer in March 2019 was agreed with her ,the respondent was required to assess the complainant for night duty given her previous employment record of having worked night duty. Given that: the complainant was transferring from day to night duty in March 2019 ; her hours of work were to extend from 15 to 22; she would be required to work an 11 hour shift including morning duties whereas her previous night work was as a sleepover; the conclusion is that Respondent had an obligation to conduct a medical assessment of the complainant for night duty for the job commencing in March 2019 before employing her in that post. Part of the complication in this case and the main reason for the issues between the parties stem from the extra hour of duty in the morning and the duties required during that hour. Neither of these factors were notified to the complainant when she accepted the transfer of location and from day to night duty. However, those changes rendered this a significantly different job to any she had performed on night duty previously and she should have been medically assessed for that job as a night worker and there should have been a related risk assessment prior to her taking up that role. In relation to the risk assessment, it is accepted that the employer arranged for a risk assessment o be conducted by an appropriate person once they were notified of possible issues in this regard.
Reviews during the employment on night duty.
The Complainant was employed in the role at issue in this case for a period of just over two months including two periods of annual leave. A complaint that the respondent failed to comply with the requirement to conduct a review medical assessment for the purpose of establishing the complainant’s fitness for night duty during this period is unreasonable. When the complainant attended for a medical assessment it is clear that her concern was not about working nights per se, but the length of the shift and in the main, the morning duties.
Requirement to assign duties where a night worker becomes ill as a result of night work.
There is no medical evidence available to the respondent ,from their own occupational health assessment or from the complainant, that she was unfit for night work during the period March 23rd until she went out sick on June 14th when the reason for her absence is given as stress. The conclusion that the complainant did not become ill as a result of night duty is supported by the fact that at a meeting with the manager of her service area, in or around May 9th, 2019, the complainant sought a transfer to another service in the area that had night duty and where she felt she could work. It is clear that the issue for the complainant was the duties of her post and not the requirement to be a night worker.
The summary of the forgoing conclusions is that the complainant is found to have established a breach of the Organisation of Working Time Act 1997 and the related regulations under the Safety Health Welfare at Work Act in that part of her complaint which relates to the failure to conduct a medical assessment of her fitness to work night duty in, or a risk assessment of the post to which she was assigned in March 2019. The other parts of her complaints are not found to be valid.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaints brought under that Act.
In accordance with Section 27 (3) (a) of the Organisation of Working Time Act,1997, I declare that the complaint that the Respondent failed in their statutory duty by not obtaining a medical assessment or a risk assessment prior to assigning the complainant to night duty effective from March 23rd 2019 and for the role to which she was to be assigned, is well founded.
In accordance with terms of section 27(3)(b) of the Organisation of Working Time Act,1997, I require the Respondent to remedy the breach by complying with their statutory obligations by arranging for a medical assessment of the complainant of her fitness for night duty in the role which she commenced on March 23rd 2019 prior to her returning to that role or no later than four weeks of the date of this decision, whichever is the earlier, or prior to any agreed assignment to an alternative role on night duty. I consider this remedy to be appropriate having regard to the circumstances of this case, where the complainant participated actively and willingly in her assignment to night duty effective from March 2019;where she had previously worked nights as a care worker without any reported ill effects; and where, as late as May 2019,she sought to continue night working albeit at a different location.
In accordance with section 27(3) (a) of the Act of 1997,I declare that all of the remaining complaints brought by the complainant are not well-founded.
Workplace Relations Commission Adjudication Officer: Janet Hughes
Night work; failure to give breaks; compensatory rest periods between night shifts; medical assessment before and at intervals during night shift; average working hours for a night worker; special hazards for night worker.