ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014052
A Senior Nurse
A Health Services Provider
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing:4/11/2018 and 15/04/2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
In accordance with Section 79 of the Employment Equality Acts, 1998 - 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 claimed she was discriminated against to take up reduced hours due to a cardiac condition disability. The case was heard over two Hearings, at the request of the parties, in September 2018 and April 2019. The Complainant referred her claim under the Acts to the Workplace Relations Commission on April 11th, 2018 and the Complainant ceased employment with the Respondent on February 5th, 2018.
Summary of Complainant’s Case:
The Complainant alleges she was discriminated against on the grounds of disability and was subject to indirect discrimination in relation to the Respondent ruling her ineligible to access reduced hours on the basis she did not meet a new criteria to undertake night duty.
The Complainant was employed as a Senior Nurse since July 2008.
The Complainant availed of parental leave which ended in September 2016.
In advance of the leave the Complainant applied for access to reduced working hours and was number one on the waiting list to access same within the Theatre Department of the Hospital.
In the interim the Complainant was diagnosed with a cardiac related condition and was deemed fit to work but not medically fit for night duty in the short/medium term and remained at work on days.
In December 2017 two nursing colleagues in the Theatre were approved for reduced working hours despite the Complainant being ahead of them on the waiting list.
The Respondent stated this initiative was part of a Pilot and that all rostered staff had to do days and nights, and this was a stipulation of staff commencing reduced hours.
The Respondent conducted an occupational health review which advised at that time reduced hours cannot be accommodated.
The Complainant was advised she was refused reduced working hours due to” the difficulty in replacing staff and especially the consequence of reduced hour and reduced night duty availability”.
The INMO advised the Respondent that as the Complainant was not rostered for night duty that this being a cause of refusal of reduced hours was a moot point as she was deemed not fit for night duty by the Respondent.
The Complainant did not see any merit in moving to another location to take up reduced hours, as offered by the Respondent, as her speciality was a Theatre Nurse.
The Complainant argues that the treatment complained of amounts to an indirect discrimination on the grounds of disability because applying this criterion to be able to work on night duty disadvantages the Complainant as she was under medical care to not work night duty. The action of the Respondent resulted in persons who did not have a disability and were further down the waiting list for reduced hours being facilitated ahead of the Complainant.
The Complainant resigned her position on February 4th, 2018 to work elsewhere in reduced hours as a Theatre Nurse.
In response to the Respondent claim that they were unaware that the Complainant had a disability and the Representative stated that the Respondent were well aware of the illness and were aware of it from the initial onset and set out their rationale for this in a supplemental submission at the second Hearing. (This medical rational will be dealt with in the Decision section below).
The Representative also set out their grounds for disputing that the disability was short term and that it did not meet the definition of a disability.
Summary of Respondent’s Case:
It is the Respondents submission that the Complainant has not adduced sufficient evident to allow the Adjudicator to conclude that there is medical evidence that the Complainant had a disability of a cardiac condition.
It is the Respondents submission that the Complainant has not adduced sufficient evidence to allow the Adjudicator to draw an inference in this case that there was discrimination.
The Complainant has not established facts that the presumed prohibited conduct has occurred in relation to her.
It is not sufficient to simply state that because the Complainant asserts that she had a disability and as a result her application to seek reduced hours in the Pilot Scheme, which she helped to negotiate, cannot be accommodated at the relevant time.
It is submitted that there must be a link drawn between the alleged discrimination and the ground on which it is alleged there was a discrimination. The Complainant must demonstrate that her asserted inability to take up a placement on the proposed Pilot Project offer was tainted by discrimination of the grounds of disability and there is no evidence to substantiate her allegations.
It is established in law that in employment equality cases the Complainant must produce some significant evident of discrimination and not mere supposition in order to allow the Adjudicator to draw an inference that a comparator was or would have been treated more favourably. The Labour Court have supported this view in a number of cases.
The Complainant asserts that her disability commenced in 2017 but the nature of same was never specified to the Respondent prior to her resignation in January 2018. The burden of proof is with the Complainant to establish that she suffered from a disability at the time material to her claim. The Complainant did not notify the Respondent of her disability until she had left employment. The content of an Occupational Health report sent to the Respondent during 2017 were brief in content and did not disclose any particulars of the nature of any medical condition. But stated a “short-medium term inability to work night duty”.
The Complainant is also required to discharge the burden of proof that the Respondent was on notice or could reasonably have been expected to know that the Complainant had a disability as defined by the Employment Equality Acts. The Respondent denies any knowledge that the Complainant had a disability or were informed of same by the Complainant prior to her resignation.
The Complainant never mentioned any disability in either her resignation letter or her exit interview.
The standard contractual hours for Nurses involve the requirement to work nights.
The Complainant was the first to be offered reduced hours as part of the Pilot Scheme which she was well aware of as she was a Union Representative but as she could not work nights and due to the demands of the Hospital at the time she did not start on reduced hours.
The Complainant was and remained first on the “Core List” for reduced hours.
There was never a “ruling” as claimed by the Complainant that she was ineligible to access reduced working hours.
The Complainant was offered reduced hours in a nearby location but refused t take up this offer.
None of the Complainants medical reports mention a cardiac problem and she also missed a number of medical assessment appointments where she would have informed the Respondent of her alleged cardiac condition.
The Complainant communicated with the HR Director but never raised a formal grievance.
It is clear from case law that not every short term health restriction will be considered a disability.
The core question for the Adjudicator to consider is was the Respondent aware of the disability and if so whether there was a causative factor in the Respondents Management of her participation in the Pilot Scheme which facilitated reduced working hours.
The Respondent submitted that the Complainant allegations amount to nothing more than a mere assertion of discrimination, and therefore submitted that the Complainant had failed to discharge the onus of proof resting upon her.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
In order to establish a prima facie case of discrimination, the Complainant must firstly have satisfied the Adjudicator that she had a disability at a time material to her claim and secondly, must prove that the Respondent was on notice that she had a disability. The issues arising in this case are, as follows: -
Was the Complainant a person with a disability at the time material to his claim? If that question is answered in the affirmative: -
Was the Respondent on notice of the disability?
Was the Complainant discriminated on grounds of his disability?
The Law Section 2 of the Act defines the term “Disability” as follows: -
“(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;”.
As Adjudicator I must first consider the allocation of the burden of proof as between the parties. Where a prima facie case is made out the onus shifts to the Respondent to prove the absence of discrimination. On the established test, it is for the Complainant in the first instance to establish the primary facts upon which the complaint is based. If the primary facts are proved, it is then a matter for the Adjudicator to determine if they are of sufficient significance to raise an inference of discrimination on the grounds relied upon. If having thus established a prima facie case that the disability existed, the burden of proof rests with the Respondent to demonstrate that the alleged discrimination was not on the grounds of disability.
In this case, the Respondents position was that it had never been made aware of the nature of the Complainant’s disability and had no sight of any medical evidence or certification that she suffered from a cardiac condition before the Complainant left their employment. The Respondent also went on to state that they never had any necessity or role to delve further into the Complainants medical condition beyond what the Complainant was providing or the Occupational Heath reviews which did not allude to a cardiac condition.
Both parties made legal submissions on the issues involved.
I will now examine the evidence presented to support the claim that the Complainant had a “cardiac condition” and “Was the Complainant a person with a disability” within the meaning of the Act.
The first issue to note is no direct medical evidence or certification was produced at the Hearings. No medical doctors or Consultants were also presented at the Hearing to support the claim that the Complainant had a disability. Therefore, no direct medical evidence was presented that the Complainant suffered from a cardiac condition. This is a significant factor in evaluating this claim.
The medical case to be considered that the Complainant had a “disability” was covered by both parties in their submissions to the Hearings.
The Complainants contribution to the proof she had a cardiac condition was as follows;
On October 24th 2016 the Complainant became unwell while at work with a very fast heart rate and she was assisted by colleagues to lie down and she was connected to a heart monitor which confirmed an abnormally fast rate. The Complainant contacted her GP and was driven by a Respondent Clinical Nurse Manager to the Emergency Department of a Hospital and the Complainant was admitted to Hospital. She contacted the Respondent to advise of her situation and would not be in work for the remainder of the week. The Complainant was discharged from Hospital on October 27th and on returned to work and advised a Respondent Manager that she was on medication and awaiting a medical follow up.
On February 9th 2017 the Complainant was reviewed by the Respondent Occupational Health Doctor who stated in their report states “treatment is as per GP and Specialist” and the Complainant “is not medically fit for nights at present-at least in the short medium term”. No copy of this report was submitted to the Hearing.
A further Respondent Occupational Health report issued on June 29th 2017, with the Complainant stating that this exempted the Complainant from night duty and awaiting specialist review. No copy of this report was submitted to the Hearing.
A reference to a report relating to October 2016 to September 2017 is also made that the Complainant was exempted from night duty on medical grounds as it “exacerbated her symptoms”. No Copy of this report was submitted to the Hearing.
It was submitted that the “ongoing correspondence from Dr. X the Respondent occupational health physician clearly set out over a reasonable timeframe that a health condition was giving rise to an inability to undertake night duty”.
It was the Complainants position that these documents put the Respondent on notice of the Complainants disability of a cardiac condition.
In summary, none of the medical documents, referred to above, state the medical certification of a cardiac condition or indeed a condition related to the heart or disability. I am satisfied that none of the medical evidence referred to or presented to the Hearings confirm a cardiac condition existed. It may well be as asserted by the Complainant that she did suffer from a cardiac condition , however, an assertion unsupported by credible evidence is insufficient to establish facts from which a disability can be inferred so as to shift the burden of proof to the Respondent. In this case both the medical documents referred to above and the extent of the Respondent’s knowledge of that disability are primary facts upon which the Complainant relies in advancing her claim of her disability, the Respondents knowledge of that disability and discrimination. The Respondent denies any actual or constructive knowledge of the disability relied upon. In these circumstances, it is for the Complainant to provide clear evidence showing that she was a person with a disability at the time material to her claim. She must also provide some evidence to establish, in a prima facie way at least, that the Respondent knew or ought to have known that she was such a person.
No satisfactory evidence was provided by the Complainant that she provided the Respondent with a medical certificate or medical opinion stating that she suffered from a cardiac condition.
I will now deal with the question of should the Respondent have been able to deduce from the medical information available to it that the Complainant had a disability.
Constructive notice arises where a person is under a duty to make enquires which, if made, would have revealed the knowledge that he claims not to have had. In Somers v W IR 94 Henchy J described the concept as follows: -
When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.
The applicability of this doctrine in an employment context was confirmed by the High Court of England and Wales in Sayers v Cambridgeshire County Council EWHC 2029.
In this case there was no mention, from the evidence, that a disability existed or that it could be inferred from the documentation. Therefore it is not reasonable to have expected the Respondent to explore the question of did the Complainant have a disability without there being good grounds to explore the issue. In the Complainants email to the Respondent dated December 12th 2017 seeking an update on her position no mention is made of a disability. The first mention of a disability appears to be made by the Complainants Representative one month before the Complainant resigned. No document was produced to support the claim that the Respondnet should have deduced the Complainat had a disability and should have enquired into same in the period from October 2016 to September 2017.
It was further alleged that the Respondent was put on notice by a letter from the Complainants Representative on January 2nd 2018 that the criteria for access to reduced working hours “is a discriminatory condition given rise to open indirect discrimination on the grounds of disability”. This letter was submitted to the Hearing. The Complainant submitted her resignation on January 18th 2018. The Respondent replied to this letter on January 29th 2018, a week before the Complainant left their employment, disputing the issue of discrimination and that the Complainant had been facilitated on days only since December 2016 but that the proposal put forward for the area the Pilot Scheme covered meant participating staff in the Scheme had to do days and nights.
In considering this concept the Adjudicator has examined the reasonableness of both parties in this claim and the Adjudicator is influenced by the following factors applying at the material time: -
the Complainant had not been medically diagnosed with a cardiac condition and therefore a disability (or if she had no medical evidence was submitted to support the claim)
and none of the resulting occupational health medical reviews mention a cardiac condition in circumstances where the Complainant, has failed to produce medical certification mentioning a cardiac condition or to just state that night duty “exacerbated the symptoms”, without specifying the symptoms that she was in fact suffering from, the Complainants case is that she suffered discrimination arising from Section 6(2) g of the Act which states “ that one is a person with a disability and the other either is not or is a person with a different disability”.
On the evidence submitted to the Hearings I am satisfied that the Complainant has not established facts to indicate that the was suffering from a cardiac disability at any material time to this claim. Furthermore, on the evidence, the Adjudicator does not accept that the Respondent could have had direct or constructive knowledge to indicate that she was suffering from an illness that amounted to such a disability at the material or reasonable time. The first documented mention of a disability appears to be two weeks before the Complainant resigned to take up a job elsewhere.In these circumstances, by application of the established test, the Adjudicator finds that the onus of proving the absence of discrimination does not shift to the Respondent. As a result the claim under Section 31 of the Acts is not supported as no disability has been proven.For the reasons set out herein the Adjudicator finds that the Complainant has failed to establish facts from which discrimination on the disability ground could be inferred. Accordingly, I decide that her claim is not well founded.
Dated: 14th June, 2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Discrimination on the grounds of disability