FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAUGHTER'S OF CHARITY DISABILITY SUPPORT SERVICES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Recommendation No. ADJ-00016637.
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 9 July 2019 the Adjudication Officer issued the following Recommendation:-
- “I recommend that the Complainant be returned to the payroll from the date of this recommendation and that on a once off special circumstances basis, the Respondent facilitates the Complainant in a residence where his genuine fear around attending female hygiene care is allayed.”
A Labour Court hearing took place on 21 November 2019.
DECISION:
This is a joint appeal by both the worker and the employer of an Adjudication Officer’s Recommendation ADJ-00016637 in a claim by an employee that he should not be required to carry out certain duties surrounding assisting female service users with personal care needs. He claimed that he should not have been furnished with a verbal warning for his refusal to undertake these duties. In his claim form he stated that the“situation has not been dealt with and I am still out of work, still receiving counselling and the company have ceased paying me since July”.The employer argued that these duties were an essential part of his role and therefore his refusal to carry out these duties warranted the disciplinary sanction imposed.
The Company is engaged in providing support to persons with an intellectual disability. The Claimant has been employed as a Care Assistant since 2004, working in various areas, mainly community house settings. For a period at the end of 2009/ early 2010, he worked in a residential setting which had both male and female service users, however, he was not required to attend to the intimate care needs of female service users. He then worked in an all-male unit. In March 2017 he was required to transfer from a community house to the Villas unit which is an on-site unit, comprising both male and female residents with complex care needs.
On 15thMarch 2017, the Claimant emailed HR requesting not to be moved to the Villas and not to undertake the task of assisting female service users with personal care needs, as he said that he was concerned about the health, safety and well-being for both the service users , himself and his family. This was responded to on 16th March 2017 stating that all staff were required o attend to the hygiene needs of all service users, male and female and was an essential part of his role. It stated that policies/procedures were in place to safeguard and support all staff and service users, namely“The Safeguarding Policy”and“Intimate Care Policy”.
On 6th December 2017, following absences from work in July, August and September 2017, the Claimant was offered on a temporary basis, to be accompanied by another staff member when carrying out such duties. When no response was forthcoming to this offer, a disciplinary hearing was held on 6th February 2018, following which he was sent for medical assessment by Medmark who reported back that the Claimant was fit to work without restrictions. The Claimant emailed correspondence to HR on 4thMarch 2018 outlining his position and expressing his concerns and stated that he had been attending his GP and Counsellor since his move.
The report from Medmark stated that the Claimant’s fear was genuine, but that it had a rational basis that was not consistent with a phobia. When the Claimant did not return to work, he was issued with a verbal warning on 14th March 2018. He appealed the sanction; however, it was not overturned. He attended another Medmark assessment on 4th April 2018 which indicated that the primary reason for his absence was work-related stress. He refused to attend another Medmark appointment in September 2018, stating that he was now referring a claim to the WRC.
The employer said that the Claimant has failed to fully engage with it thereby preventing it from resolving his issues. A special measure had been offered to address the Claimant’s concerns which has been refused. The requirement to attend to the personal hygiene needs of female staff is a contractual requirement of the Claimant’s role and it stated that no compelling reason has been presented why he should be excused from performing these duties. It stated that if the Claimant’s requests were acceded to it would add a layer of gender discrimination to an already marginalised element of society.
The Claimant said that he is seeking to return to work without having to attend to the intimate care plans for female service users and is seeking compensatory award for the actions of his employer which he claimed have kept him off the payroll since 2018.
Having considered the oral and written submissions of both parties, the Court recommends that the verbal warning should be rescinded and expunged from the Claimant’s file on condition that he returns to work and performs the full range of his duties, including attending to the personal needs of all service users, male and female, with the assistance of support as offered by the employer. Furthermore, the Court recommends that the Union should engage with the employer to agree any other possible measures that may be taken to ameliorate the Claimant’s circumstances, including any measures regarding his lengthy absence.
The Court upholds the employer’s appeal and rejects the Claimant’s appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
04 December, 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.