ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024740
Marie O Shea
Health Services Executive
Pat O'Donoghue SIPTU
Loughlin Deegan Byrne Wallace Sol
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: 23/04/2021
Workplace Relations Commission Adjudication Officer: Janet Hughes
In accordance withSection 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
1. This is a complaint of discrimination on the disability ground under the Employment Equality Act based on the alleged failure of the Respondent to accommodate the Complainant with a return to work following an injury and in doing so that the Employer discriminated against the Employee. In addition to the substantive complaint, the submission alleged a failure in obligation to engage in a proper assessment of what appropriate measures could be taken to facilitate the Complainant’s return to work.
2. The Complainant is employed by the HSE as an ambulance paramedic located in the HSE. The complaint was submitted on 10 October 2019. At that time the Complainant was out of work due to her injury. On the 16th of March 2020 the Complainant did return to work to a position on a switchboard in a hospital on the paramedic rate of pay. In June 2020 the Complainant returned to her position of ambulance paramedic as part of a three-person team before reverting to her previous role in a two-person team on the 14th of July 2020. At the hearing, the complaint was set out as covering the period of the absence from 18 February 2019 up to March 2020 The period covered by the complaint is an additional matter for consideration based on the submissions of the parties.
3. This was a case heard by submissions on the part of the representatives together with evidence provided by an HSE manager and decision maker, the Assistant Chief Ambulance Officer, who dealt with the matter at local level on behalf of the HSE. The parties were satisfied to proceed without the administration of an oath.
4. The hearing was held remotely as provided for in enabling legislation.
Summary of Complainant’s Case:
5. In or around July 2018 the Complainant sustained an injury which resulted in her not being fit for work. It was initially anticipated that her absence would be for a few weeks. However, due to complications she experienced mobility issues with her arm and what is known as “complex pain syndrome”. This in turn led to further treatment and an extended absence. There followed a series of medical reports from the occupational health specialist with varying degrees of fitness for work and none recorded in the reports.
DOA 17/12/18: “Unfit for duty.”
DOA 18/02/19: “In my opinion the above is fit for modified duty. In my opinion the above is fit for duty which does not involve the use of her right arm.”
DOA 04/03/19: “The above is unfit for normal duty. In my opinion the above is fit for duty which does not involve the use of her right arm.”
DOA: 01/04/19: “The above is unfit for normal duty. In my opinion the above is fit for light duties.”
DOA 30/04/19: “The above is unfit for normal duty. In my opinion the above is fit for modified duties including administrative tasks and non-clinical work.”
DOA 15/05/19: “In my opinion the above is unfit for normal duty for the foreseeable future. In my opinion the above is fit for modified alternative duties. I would be grateful if you could advise if such duties are available. If modified alternative duties are available I would appreciate if you could furnish me with a list of duties as to allow me determine which duties the above would be fit to carry out. The above is keen to work in any capacity.”
DOA 15/08/19: “It is my opinion that the above is unfit for normal duty. The above is fit for duty that is both clinical and administrative that does not involve the following: patient transfers, high risk manual handling as identified by a manual handling risk assessment, tasks that require forceful gripping with the right arm and tasks that require repetitive flexion/extension of the right wrist/forearm. The above is fit for driving. In the absence of a full functional analysis of the proposed “project work” I make the above recommendations.”
DOA 14/10/19: “It is my opinion that the above unfit (sic) for normal duty. The above is fit for duty that is both clinical and administrative that does not involve the following: - patient transfers, - high risk manual handling as identified by a manual handling risk assessment, - tasks that require forceful gripping with the right arm and tasks that require repetitive flexion/extension of the right wrist/forearm - the above is fit for driving.”
DOA 19/12/19: “It is my opinion that the above is unfit for normal duty. As per my previous reports, it is my opinion that M is fit for duty that is both clinical and administrative that does not involve the following: - heaving lifting (i.e., lifting of patients) - high risk manual handling as identified by a manual handling risk assessment - the above is fit for driving.”
DOA 18/02/20: “It is my opinion that the above is unfit for normal duty. In my opinion the above is fit for duty that is both clinical and administrative that does not involve the following: heavy lifting (specifically lifting patients down a set of stairs in a home setting) high risk manual handling as identified by a manual handling risk assessment the above is fit for driving.”
DOA 28/02/20 Physiotherapy report recording a very good recovery in right shoulder with minimal restrictions in her range of movement. And “Unfortunately the same level of improvement cannot be reported in her right hand. She has undergone a manipulation under anaesthetic of her wrist as well as steroid injections along with a lot of exercising. In spite of that, her wrist extension remains significantly limited to half range and her grip strength is approx. 18kg versus 31kg on her left. Due to the unpredictable nature of the recover from CRPS it is not possible to predict when, or indeed if, Marie will recover to a functional level that would allow her to return to her job as a paramedic.”
DOA 19/05/20: “It is my opinion that the above is fit for normal duty in her role as an emergency medical technician.”
DOA 14/07/20: “It is my opinion that the above remains fit for all normal duties without restriction.”
6. In addition to the extract from the medical reports indicating varying degrees of recovery, it was submitted on behalf of the Complainant that in May 2019 her line manager suggested that the Complainant could potentially perform and be potentially useful in an area of work in the station. This proposal was not actioned by the HSE.
7. On July 3rd, 2019, SIPTU wrote on behalf of the Complainant seeking a progression on the matter and engagement which resulted in a meeting which was finally scheduled for the 10th of March 2020, a meeting which did not proceed. No further meetings were scheduled throughout the Complainant’s period of sick leave, and it was contended that there was no communication by the Respondent seeking to proactively engage in assessing her potential return to work.
8. On 10/10/2019 a complaint was submitted to the WRC. The Complainant experienced losses through reductions in sick pay and the temporary rehabilitation remuneration and critical injury payment resulting in extreme financial difficulty at the time.
9. It was submitted on behalf of the Complainant that the Respondent has discriminated against her by their failure to reasonably accommodate her return to work prior to March 2021. Such discrimination is in contravention of sections 6 and 8 of the Employment Equality Act and the Respondent is not entitled to rely on section 16 of the Act as a defence having failed in properly observing its provisions.
10. The Complainant submits that the facts demonstrate a clear “prima facie” case of discrimination and that the key question at issue is whether the Respondent failed to provide appropriate measures as provided by section 16 of the Act. The Complainant further submits that in this regard the onus of proof shifts to the Respondent to rebut the inference of discrimination raised. Section 16 of the Act was set out. In terms of precedent cases to be considered, the Complainant cited Humphries v Westwood Fitness Club in some detail on the basis that the Respondent has failed to follow the approach as outlined in the case law by failing to carry out any assessment or providing evidence of such an assessment of the potential of the Complainant to return to work in line with the recommendations of the occupational health reports where a range of duties were potentially available. It was asked that it be noted that there were varying degrees of fitness identified in the medical reports over a period of time and specifically that she was able to return to light duties and driving.
11. It was submitted that consideration should have been given to the adaptation of the Complainant’s existing role as provided for by section 16(4).
12. On this point the Complainant’s submission referred to the provision of special treatment or facilities in the case of “A Worker (Complainant) v An Employer  16 E.L.R. 159”. This case was cited in support of the proposition that there was no proper consideration on the part of the Respondent of potentially restructuring the Complainant’s role.
13. The submission for the Complainant cited the ECJ in the case of Sonia Chacon Navas v Eurest Colectividades SA, Judgment of 11.7.2006 - Case C-13/05. This case was cited in support of the contention that there is a duty to provide reasonable accommodation where such would enable an employee to be capable of performing essential functions of their post and it was contended that the Respondent had failed in this case to properly consider the accommodation of the Complainant in this regard.
14. Regarding consultation or participation by the Complainant in the process of assessing her accommodation and return to work, the Complainant submitted that the final stage of the test in Humphries applied or, in the alternative, while noting that the decision of the Supreme Court in the case of Nano Nagle School v Daly  IESC 63 did not go so far as to hold that there is a mandatory duty to consult with employees in each and every case, nonetheless did note the importance that courts have attached to fair procedures.
Summary of Respondent’s Case:
15. The Complainant is and was at all material times employed by the National Ambulance Service and currently as a paramedic. The core of the Respondent’s case is that throughout the period comprehended by the complaint and beyond that period she was certified at best as being fit to do some work but not fit to do the essential duties of her job. The Respondent contends that the case on behalf of the Complainant is based on a claim that the Respondent should have provided her with an entirely different job to that of a paramedic, a claim which is rejected on the basis that the Respondent had no such obligation.
16. The Respondent drew attention to the terms of the sick pay scheme made available to the Complainant and without prejudice to the fact that it had in its view no obligation to provide the Complainant with an entirely different job the Respondent did give the Complainant a different job for part of the recovery period. When deemed to have recovered from her injury she was facilitated with a return to work on a graduated basis. The Respondent also considered a project for the Complainant, and it was this project for which she was assessed in the report of the 15th of August 2019 and found to be unfit to carry out those duties.
A brief description of the duties of a paramedic was provided at the hearing as follows: (a) driving ambulances (b) safely lifting and transporting patients who may be unconscious or otherwise unable to move without assistance (c) moving promptly to and from the location of medical emergencies, including promptly boarding and disboarding ambulances and moving at speed between ambulances and patients who have not yet been boarded into ambulances (d) application of a wide variety of medical techniques including: performing CPR; stopping bleeding; application of medical devices (e) carrying necessary medical equipment and supplies to and from the location of patients. It was submitted that the duties as set out are the fundamental duties of the job of a paramedic and that a person not medically capable of performing that list and other similar duties is not capable of carrying out his or her job as a paramedic. The job of a paramedic involves an irreducible essence of clinical work and, as such, a person working solely at administrative tasks and non-clinical work as set out in certain of the medical reports provided by occupational health cannot be said to be carrying out the duties of the job of a paramedic. The Respondent does not have any legal obligation to provide such a different job to an employee who has a disability. The Respondent is not precluded from providing such a different job to an employee who has a disability, but this is to be distinguished from not having an obligation to do so. Regarding the duties outlined by her line manager in a communication of the 9th of May 2019, these are duties of a station supervisor and not the duties of a paramedic. The management decided that this suggestion could not be accommodated.
17. Further to Covid contingency planning measures that were activated in March 2020, the Complainant was provided with the opportunity to return to work as a telephone switchboard operator in a hospital. While this post is paid less than a paramedic the Complainant was accommodated in this job for the final months of her recovery period in the job of a paramedic switchboard operator. Her return to work was then accommodated once it was known that she was to approach full fitness and she was accommodated in that regard through refresher training and through her assignment as the third person of a team before finally returning to be part of a two-member team. Mr Mooney Assistant Chief Ambulance Officer explained that this was normal practice within the Ambulance Service when a date for a return to work was predicted and this type of arrangement was put in place to facilitate the person’s return to duty.
18. The contention that there was insufficient communication from the Employer was rejected, citing correspondence from the Assistant Chief Ambulance Officer on the 13th of May 2019 confirming that the Respondent did not have light duties for her but committing to return to work with the occupational health department. There is the email of the 14th of August 2019 notifying the union representative of the potential filing project (although this did not materialise following the medical assessment) and a letter from the Operations Resource Manager on the 13th of September 2019 informing the Complainant that no return to work could be arranged at that time and providing details of rehabilitation case management.
19. Employers have an obligation to provide reasonable accommodation to employees who have a disability. The obligation to provide reasonable accommodation is normally considered in the context of this obligation being an exception to the general entitlement of employers under section 16(1) of the Act of 1998 to terminate the employment of an employee who is not capable of undertaking the duties of the employee’s job. In summary, the Respondent submitted that most cases of litigation regarding a reasonable accommodation are associated with a dismissal which does not arise in this case. In this case the Complainant was not capable of discharging the duties of her job for a significant period of time; she remained in the employment, and she was paid a considerable amount of money during that time in the form of full pay, half pay and temporary rehabilitation remuneration. For a period of time, she was accommodated by being given duties that were not the duties of a paramedic but for which she was paid as a paramedic. When the period of her disability ceased, she was returned to her post. The Respondent cited section 16(1)(b) of the Act of 1998 and then referred to the case of the Supreme Court decision in the Nano Nagle School v Marie Daly case by submitting that the Labour Court decision in Humphries v Westwood Fitness Club predates the Supreme Court decision and is less authoritative and therefore cannot be relied on in light of the decision of the Supreme Court in Nano Nagle. The complaint that the Respondent was obliged to provide the Complainant with light duties during her recovery period or of the type requested by the Complainant was rejected on the basis that this expression of “light duties” is not one that has any statutory basis. The test to be applied to the extent of the obligation to provide a reasonable accommodation is that set out by McMenamin J. in Nano Nagle: “The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to redesignate or create a different job to facilitate the employee.” And the submission continued with extract from that decision: “These conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job”. It was submitted that in the present case during the relevant period the Complainant was unfit to perform the duties of a paramedic and that there was no distribution of those duties which would render her fit to carry out those duties. She was at certain stages fit to carry out the duties of a different job but the obligation to provide such a different job is not provided for by the legislation or through the decision in Nano Nagle.
20. Regarding the complaint that the Respondent did not assess the possibility of the Complainant returning to work based on the medical reports, this is rejected on the basis that the Respondent did assess on multiple occasions whether it could facilitate the Complainant’s return to work and in any event the Complainants submission is based on an inaccurate statement of the Respondent’s legal obligations. Contrary to the position of the Complainant, the Respondent was not obliged to facilitate the return to work because the medical reports indicated the Complainant was entirely unfit for the duties of her job and only fit to a limited extent for the duties of entirely different jobs.
21. The submission that there was no consultation is rejected. There was consultation with the Complainant and her union representative as to whether the Complainant could be facilitated with a return to work during her recovery period. In any event the Respondent did not have a freestanding legal obligation to engage in consultations with the Complainant. In addition, at the hearing the Respondent submitted that consideration of the complaint was limited to the period up to the point at which a complaint was lodged by the Complainant and not beyond that period until March 2020 as claimed.
22. Mr Mooney, who was the key decision maker referred to the Occupational Health Reports containing the expression fit for ‘light duties’. Medical advisers had been asked previouslynot to use this term when advising on the fitness of employees to return to work - as there are no light duties in the Ambulance Service, and these could not be accommodated. In relation to the work proposed by Mr West, while it may have been of assistance to him, it was not paramedic work, [also confirming at the hearing that the work in question was work of a higher grade].
23. The complaint was lodged with the WRC on the 10th of October 2019. Asked at the hearing for the period comprehended by the complaint, SIPTU gave it as the 18th of February 2019 to the 16th of March 2020. The Respondent objected to the extension of any consideration post the date on which the complaint was submitted.
When the complaint was originally lodged, the Complainant was not working and was seeking an accommodation to allow her to return to work as a paramedic. With the effluxion of time her circumstances changed, and she has since returned to work as a paramedic having been restored to full health. In the circumstances any award of redress is limited to consideration of compensation and an order. Should an award of compensation arise, the amount will be determined by reference to the terms of section 82 of the Employment Equality Act 1998, in which case compensation can take account of the full effects of any discrimination suffered by this Complainant including any enduring effects beyond the date of a complaint to the WRC.
24. Regarding the burden of proof, there is no dispute between the parties that the Complainant did have a disability during the cognisable period. Neither is there any dispute that the Respondent did not make a reasonable accommodation for the Complainant in recognition of her disability during the cognisable period. Given the Respondent disputes the extent of its obligation to provide a reasonable accommodation and disputes the interpretation to be given to section 16 of the Act together with the interpretation of the legislation which flows from the medical evidence provided by its own medical advisors, the burden of proof lies with the Respondent in this case.
25. The essence of the Complainant’s case is that she suffered less favourable treatment in being denied the opportunity to continue in her employment by reason of her disability. In advancing her claim it is contended that had she been provided with reasonable accommodation for her disability she could have resumed employment and would not have suffered the less favourable treatment complained of. Consequently, the central issue for determination in this case is the correct interpretation and application of s.16 of the Act and the interaction between that section and s.37(3) of the same Act.
At this point it is useful to recite the provisions of section 16(1)-(3) and the related section (4) of the Act:
“(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 - (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. ...
(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 a disability - (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 business, and (iii) the possibility of obtaining public funding or other assistance.
(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, ...”
Since the decision of the Supreme Court in Nano Nagle School v Daly it is now clear that subsection (1) of s.16 is subject to subsection (3) of that section. It is also clear that the duty of an employer toward an employee with a disability can extend to a redistribution of tasks so as to relieve a person with a disability of the obligation to perform tasks which are beyond that persons physical capabilities. That obligation is limited only by what is reasonable and proportionate. To discharge that obligation an employer should, at a minimum, consider what if any adjustments can be made and then go on to consider if those adjustments would place an unreasonable or disproportionate burden on the employer. The onus of showing that any adjustments of this nature would result in an unreasonable or disproportionate burden rests with the employer. While there is no statutory duty on an employer to consult with the employee concerned, in the course of its consideration, the Supreme Court did point out that as a matter of prudence such consultation should occur.
26. It is contended on behalf of the HSE that the obligation to provide reasonable accommodation to a person with a disability under s.16(3) of the Act does not apply in the case of emergency services such as those provided by the HSE, by operation of s.37(3) of the Act. A similar question fell for consideration by the High Court in Cunningham v Irish Prison Service  IEHC 282.
In a judgment delivered on 9th June 2020 Barr J stated as follows, at par 63: -
“It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law. This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act. The judgments of the CJEU referred to earlier and the judgment of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work. In addition, the Nano Nagle case makes it clear that the provisions of the CRPD are also relevant to the question of the correct interpretation of the Act. The court must interpret s.37.3 of the 1998 Act in light of Art. 27 of CRPD to which both the EU and Ireland are signatories.”
The Judge then continued, at para 67: -
“I accept the submissions made on behalf of the appellant that the correct interpretation of s.37.3 does not mean that the respondent can self-certify that the appellant is incapable of performing the range of functions that he may be called upon to do as a prison officer due to the fact that he cannot perform C&R functions and that they are therefore relived of the obligation to make reasonable accommodation for him. To allow such self-certification by the IPS would deprive the appellant of an effective remedy in seeking to enforce his rights under the Directive and the Act: see Egenburger judgment supra.”
The principles enunciated in that case are equally applicable to the facts of this case.
27. The medical evidence to the hearing indicates that the Complainant had the capacity to perform light duties while she was recovering from her injury. The Respondent cannot merely assert that no such light duties were available in circumstances in which, I am satisfied on the evidence, they gave no serious consideration as to how the Complainant might be accommodated or to fully explore how her duties and tasks could be adjusted so as to achieve that result.
In so far as s.16(1) requires that a person must be fully capable of performing the duties for which he or she is employed, the judgment in IPS vs Cunningham makes it clear that, even in an employment covered by Section 37 such as an emergency service, the employer, in this case the National Ambulance Service of the HSE, cannot self - certify an employee unfit for work such that it relieves them of the obligation to apply the terms of Section 16(3) in full as part of their decision making. There is simply no evidence that they applied the terms of Section 16(3) of the Act in the case of Ms O Shea.
28. In her representations to her employer the Complainant contended that other employees with a disability were accommodated in returning to work. This was again stated on her behalf in the SIPTU submission. Whereas a claim of less favourable treatment in comparison with other employees is an understandable and normal feature of employee relations or what are often termed industrial relations claims, this aspect merits consideration in terms of whether a requirement exists to provide a named comparator for the purposes of establishing discrimination under the Employment Equality Act in cases of a disability claiming a reasonable accommodation.
On the question of a comparator, it is well settled that in cases involving less favourable treatment, a comparator can be actual or hypothetical. (Determination EDA1310, Henry Denny v Rohan, in which the Labour Court followed the decision of the House of Lords to that effect in Shamoon v Chief Constable of the RUC  IRLR 258). A hypothetical comparator can be constructed by asking why the complainant was treated as she was. If the treatment complained of was because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic.
The Complainant in this case, Ms O Shea, was deprived of the opportunity to continue in employment because of her disability. It follows that an appropriate comparator is a person in a similar role who does not have a disability or a person who has a different disability. In this case no named comparator with a different disability was put forward for consideration and therefore it follows that the appropriate comparator in this case is a person in a similar role who does not have a disability.
On the second question, it is well settled that discrimination can arise where similar situations are treated differently or where different situations are treated similarly (see the decision of the Labour Court in Campbell Catering v Rasaq  ELR 310).
By application of that principle, at the material time a hypothetical comparator without a disability was required to undertake a range of duties that were fully within their physical capacity. In contrast, in requiring the Complainant to undertake the same range of duties, she was required to undertake duties beyond her physical capacity as a condition of continuing in employment. It follows that in that respect she was treated differently and less favourably because of her disability.
29. Turning to argument regarding the level of consultation, Recital 18 of the Framework Directive states:
“This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.”
Section 23 of the Framework Directive continues:
“In very limited circumstances, a difference of treatment may be justified where a characteristic related to... disability... constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate.”
30. Allowing for the fact that the Supreme Court in Nano Nagle found that consultation regarding a reasonable accommodation is not a mandatory requirement under the terms of the Employment Equality Act, the terms of the Framework Directive must mean by extension that, if an employee seeks a reasonable accommodation and that accommodation is refused, that they are entitled to be informed of the justification for the refusal of a reasonable accommodation by reference to the relevant portions of the legislation. This is surely the minimum that can be expected under fair procedures within the meaning of the Framework Directive and the High Court Judgement to the effect that Section 37 of the 1998 Act does not provide a blanket exclusion of the emergency or other named services from the application of Section 16 of the Act. A failure to provide stated reasons to refuse a reasonable accommodation would leave the employee concerned in limbo and in this case comparing herself to others in the employment and feeling unfairly treated. Furthermore, the obligation to provide such information is necessary for the employee to make a grounded appeal. In other words, one which is grounded in the employer’s decisions and the legislation. It follows from the terms of the Irish legislation that even in the emergency services where there is scope for exemptions, the application of those exemptions and the employer’s decisions must be set out by them and in turn must be justified, proportionate and on objective grounds.
31. The first indication from the medical advisor that the Complainant was fit for “modified duty” was provided on the 18th of February 2019. This was followed by three further reports which gave indications of some fitness for duty but not “normal duty”. The first record of the Complainant being refused a reasonable accommodation is in her record of a telephone conversation which is contained in an email of Thursday the 9th of May 2019 which refers to a telephone call the previous Tuesday. While it is a matter of fact that the deciding officer did engage in communications subsequently regarding possible alternative duties, at no stage did the Employer set out the actual reason for refusing a reasonable accommodation or certainly not in writing, not in detail and not in terms which related to section 16 of the Employment Equality Act either prior to or post May 2019. The HSE in this case has failed to demonstrate that they had in fact applied the terms of Section 16 in any considered or meaningful fashion in the case of the Complainant and, even if they contend otherwise, they failed to provide evidence of any meaningful consideration of the application of the terms of Section 16(3) to the Complainant.
32. The requirement to provide a reason based on the legislation is not to be confused with an obligation to provide a reasonable accommodation, but it should at the very least oblige the employer to seriously consider the request for a reasonable accommodation or in the alternative to objectively justify the reason for refusing an accommodation for stated reasons. A simple statement of refusal along the lines provided to Ms O Shea will not suffice:
13th September 2019
‘As you do not have return to work date, we are not in a position to accommodate rehabilitation to work. While I understand it is difficult for you, the National Ambulance Service need to follow HR guidance.’
33. The provision of a statement setting out the grounds for refusing an accommodation will also allow the Respondent to demonstrate that they have in fact taken into account their obligations to consider a return to work by an employee based on the legislation. Without specific reference to section 16 as a basis for decision making, that decision making is opaque and could be based on any consideration including, but not limited to, direct discrimination because of disability contrary to the provisions of the legislation.
34. Acknowledging that section 37 was not cited by the Employer in this case and thus the terms of the Framework Directive and the elements of the Cunningham case may not seem directly relevant, it is the reasoning put forward by the Respondent related to the emergency nature of the service and the related selected tasks from the Complainant’s role which render the judgments regarding the meaning to be given to the provisions of section 37 relevant to the decision making in this case. In effect, the Respondent used certain tasks and the emergency elements of the job role and responsibilities as an absolute derogation from the terms provided for in section 16 of the Employment Equality Act without applying in full the provisions of that section of the Act or indeed the qualified elements of section 37 and failed to justify their decision by reference to any statute or to demonstrate they had actually applied the terms of section 16 of the Employment Equality Act to the Complainant.
35. In their submission to the hearing the Respondent gave as “the fundamental duties of the job of a paramedic”:
“A paramedic who is not medically capable of performing the foregoing (and other similar) duties is not capable of carrying out his or her job as a paramedic. The foregoing duties, and many other duties of a paramedic involve the paramedics being able to use both arms. The examples cited are (a) driving ambulances (b) safely lifting and transporting patients who may be unconscious or otherwise unable to move without assistance (c) moving promptly to and from the location of medical emergencies, including promptly boarding and disboarding ambulances and moving at speed between ambulances and patients who have not yet been boarded into ambulances (d) application of a wide variety of medical techniques including performing CPR; stopping bleeding; application of medical devices. (e) Carrying necessary medical equipment and supplies to and from the location of patients.”
36. In this case, unlike in the case known as Nano Nagle, there was no detailed medical assessment of the duties of the Complainant set against her role. it is the absence of a detailed medical assessment along the lines of that conducted in Nano Nagle that the union in this case has pointed to as a failure of obligation on the part of the Respondent. At the hearing a copy of the job description of a paramedic was requested of the Respondent. This was provided on May 21st, 2021 together with a covering letter which refers to the job specification and states:
“The job specification includes, in the duties of the paramedic role the following items:
· “Deal with emergencies as required in line with PHECC CPGs and NAS SOPs”.”
37. Attention is drawn once again to the reference to emergencies (as an emergency service) which is relied upon by the Employer against the Complainant. It is a matter of fact that the “principal duties and responsibilities” set out in the job description/role profile for a paramedic provided by the Respondent following the hearing fall under many headings. The headings are:
· Clinical responsibilities.
· Promote personal health and wellbeing.
· Promote safety health and welfare at work (including driving and vehicle checks).
· Administrative responsibilities (including managing resources and information).
· Tours of duty.
· Education and training.
· Other requirements of the post.
There are subheadings running to pages of detail under each of these sections.
38. The principal duties and responsibilities which together form the role for which a paramedic is employed, must be read in the context of the details of the service which includes but is not limited to:
· Clinically appropriate and timely pre-hospital emergency patient care and transportation service; pre-hospital emergency care and transportation services as an integral part of a continuum of care for patients/clients.
· Requirement to work in partnership with other healthcare providers in both scheduled and unscheduled healthcare service.
39. The defence of the Respondent is self-evidently made that the role of a paramedic is so confined to emergency responses that only a person who has the use of their right hand can perform the duties and responsibilities of such a post. The Respondent faces three challenges in maintaining this stance which bear repeating from the earlier conclusions:
(1) The reasoning for the rejection of a reasonable accommodation as a paramedic was not set out to the Complainant.
(2) The Respondent failed to provide any evidence that the terms of the Employment Equality Act at section 16 were in fact applied or even considered in the decision that the Complainant could not be accommodated by application of those terms.
(3) Unlike the case in a school setting where the employer in the Nano Nagle case did arrange for a detailed analysis of the SNA duties and the adaptation/equipment required, the HSE did not carry out such an assessment and in their own evidence to this hearing relied on one element of what is a wide range of duties and responsibilities required of any paramedic, relying solely on one aspect of their principal duties and responsibilities, i.e., the provision of an emergency service. The plain reading of the role and responsibilities of the postholder on official HSE documentation is far more wide-ranging and expansive than the narrow grounds which appear to have decided the matter against the Complainant and which were presented as a defence in this case.
The conclusions of McMenamin J. in Nano Nagle appear to fit the circumstances of this case very well:
“85. In my view, the term “distribution of tasks” must be read in a manner which is consistent with the entirety of s.16, and the purpose of the Act. If it is arguably ambiguous, it should be given an interpretation that reflects the plain intention of the Oireachtas, which can be determined from the Act as a whole. (Section 5, Interpretation Act 2005). Seen from the perspective of legislation it could not have been the intention of the legislature to create a situation where, by deploying the term “tasks” to divide up the term “duties”, an employer could effectively render an employee’s duty capable of performance. This would defeat the purpose of the Act, which is to achieve equality. It is arguable also that this would allow an employer to unlawfully “classify” a post in a discriminatory way.”
40. The effect of the Respondent’s decision in this case in reducing an extensive lengthy description of “principal duties and responsibilities” to certain physical tasks of an emergency nature on the basis of which it was then deemed she was unfit to work as a paramedic at all conflicts with the direction given by McMenamin J. in paragraph 85 of the Nano Nagle decision. The decision in the case of the Complainant was taken without any adequate medical assessment of her capacity to perform a range of the principal duties and responsibilities of her post, to what extent she could perform those duties and what supports could render her capable of performing those duties and/or what distribution of tasks could occur to render her capable of performing those duties. Put quite simply, the terms of section 16(3) were manifestly not applied to the Complainant in this case. That this is the conclusion in relation to the application of the anti-discrimination provisions of the Employment Equality Act as they affected a person with a disability by the HSE-the foremost publicly funded health service provider - is very regrettable.
41. Part of the rationale of the Respondent is captured by the testimony of Mr Mooney where he referred to the description of ‘light duties’ as used by medical advisors (not only in the case of the Complainant) and the rejection of that term as having any application in the Ambulance Service for paramedics. This brings us in a circle back to section 37 of the Employment Equality Act and its application in the emergency services. The term “light duties” does not exist in the Employment Equality Act. It is the terms of section 16 which ought to have been applied by the Respondent particularly when an accommodation is sought, as in this case. The application of the legislation cannot be set aside or ignored because of an offence taken to the use of a term which does not fall within the ambit of the legislation. And neither can a medical or management assessment which has regard solely to selected tasks of an emergency nature and not the full duties of a postholder provide the sole basis of decision making under the terms and obligations of the Employment Equality Act at section 16.
42. The summary of all the forgoing conclusions is that the Respondent failed to meet its obligations to provide a reasonable accommodation within the terms of Section 16 of the Employment Equality Act 1998 as amended.
Discrimination where reasonable accommodation is not provided.
43. The Employment Equality Act does not specifically state that a failure to provide a reasonable accommodation constitutes an act of discrimination. It is found necessary to explain in this case the reasoning in this case as to why a failure to provide a reasonable accommodation constitutes discrimination for the purposes of the Act.
44. For the purposes of determining discrimination arising out of a failure to provide reasonable accommodation, the comparator is any relevant able-bodied person, in this case another paramedic. That able-bodied person is provided with the means and the opportunity to access, retain or be promoted in an employment - essentially to access or maintain their participation in the workforce based on their fitness to work as an able-bodied person. The person with the disability on the other hand is refused access to the workforce based on an assessment of their disability which of itself creates a form of inherent or inbuilt discrimination. With no allowances or balancing factors accommodating their disability by application of the terms of section 16, the person with a disability is discriminated against unless the employer can rely on the defence provided under 16(1). However, to rely on subsection (1) in any meaningful way, the employer would have to be able to demonstrate through evidence that they had made every reasonable effort to utilise the terms of subsections (3) and (4).
45. Reasonable accommodation is in effect an instrument of favourable treatment of a person with a disability, the provision of which can act to remove the discrimination between the person with the disability and the able - bodied person by looking, not at what the person cannot do based on their disability but rather what they are capable of doing. Because it is an instrument provided for in equality legislation, it follows that where an employer relies on section 16 to remove discrimination against the person with the disability, the use of that section cannot be claimed as discrimination by an able-bodied employee.
46. The inescapable conclusion from the forgoing reasoning is that the Complainant in this case was assessed by the Respondent based on selected duties which they concluded that she could not perform based on a limited assessment of her disability thus relying on her disability to exclude her from the workforce based on their criteria and not those set out in section 16 of the Act. Thus, they discriminated against the Complainant on the disability ground.
47. Based on all of the reasoning, including the application of precedents and the interpretation of the legislation, the finding in this case is that in failing to apply the terms of Section 16 of the Act to the Complainant, the HSE discriminated against Marie O Shea under Section 6 (1)(a) and 6(2)(g) of the Employment Equality Act through less favourable treatment of her compared to an able-bodied employee as provided for in the Act:
(6) (1) For the purpose of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where-
(a) A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which-
(i) Exists *
*At the time of the decisions and during the cognisable period, the disability existed.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are-
(g)that one is a person with a disability and the other either is not or is a person with a disability (in this Act known as ‘’the disability ground’’
48. The act of discrimination is completed by the terms of section 8(1):
“In relation to -
(a) access to employment…an employer shall not discriminate against an employee….”
49. Section 82(1) of the Act sets out the types of orders which may issue in cases where redress is to be decided.
Section 82 1(c) provides for ‘an order for the effects of acts of discrimination …which occurred not earlier than 6 years before the date of referral.
50. At the hearing, the parties were asked to agree on the financial losses experienced by the Complainant. Due to the IT difficulties experienced by the HSE, provision of that information was delayed. A reminder was issued by the undersigned in July 2021. A statement of losses was provided by the HSE on July 29th 2021as follows:
Ms O Shea received payment in accordance with HSE sick leave scheme from 18.02.2019 up to and including 15 March 2020.
It is noted that the period of calculation post dates the date of referral on 10 October 2019.
On August 12th, having received no response from the Complainant side, I proceeded to make this decision. I will say that it not satisfactory that an Adjudication Officer would have to follow up with the parties on agreeing losses; that no correspondence was provided as to whether the amount of the losses was agreed and that no information was provided at all on this aspect by the Complainant Representative beyond a statement of nett fortnightly pay as set out in the complaint form. That figure was given as € 1250 per fortnight. In the submission it was stated that one of the effects of the discrimination was that the Complainant suffered financial hardship whereas the Respondent pointed to the generous sick pay scheme.
While acknowledging that redress to be paid under the Employment Equality Act is not confined to or to be wholly defined by a rate of pay or losses, these are factors to be considered when deciding on appropriate redress or at least explaining the amount of compensation awarded as required by the Judiciary in recent Judgments such as Nano Nagle. Moreover Section 82 of the Act requires consideration of the compensation to be awarded by reference to weekly pay-not defined as gross or nett and then to provide for whichever figure is the greater, a calculation based on the weekly remuneration or a set lump sum of €40000 and therefore the basic information is essential as it the accuracy of that information. In general, I found the information provided in this case to be somewhat lacking, and not altogether helpful. The Decision nonetheless is to be made based on the available information in the interests of the Complainant rather than delay the matter further given these events occurred some considerable time ago from her perspective.
51. Section 82 (1) of the Employment Equality Act:
“(1) Subject to this section, the types of redress for which a decision of the Director under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:
(a) [reference to equal pay - n/a]; ...
(c) an order for compensation for the effects of Act of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;”
It is this subsection which applies to this case.
“(d) an order for equal treatment in whatever respect is relevant to the case;”
This subsection does not apply to this case since the Complainant has returned to work.
“(e) an order that a person or persons specified in the order take a course of action which is so specified;”
An order will be given in this case.
“(f) an order for re-instatement or re-engagement, with or without an order of compensation.” [n/a in this case]
52. Regarding compensation, section 82(4) provides:
“The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be -
(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of -
(i) 104 times the amount of that renumeration, determined on a weekly basis,
(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or
Applying the terms of sub section (4) (a)(ii), the amount to be paid to the Complainant is 104 times the nett weekly rate of pay calculated based on the information provided by the Complainant in the complaint form taking into account the information provided by the Respondent in so far as this is applicable. The figure of €1250 per fortnight multiplied by 26 pay periods amounts to €32500 or €625 per week. The figure of €625 multiplied by 104 amounts to compensation of €65000. It is not for the Adjudication Officer to calculate actual gross weekly loss in any case-that responsibility lies primarily with the Complainant and this decision relies on the available information. That said, the amount of compensation is considered fair and appropriate compensation for the effects of the discrimination in all the circumstances of the case.
The amount of the award is also justified by reference to Sabine Von Colson and Elisabeth Kamann v Land Nordhein-Westfalen where it is said” If a member state chooses to penalizebreaches of that prohibition by the award of compensation, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as for example the reimbursement only of the expenses incurred in connexion with the legislation adopted in connexion with the application…’ That Judgement was issued in 1984 and it is well established as a reference point for the awarding of compensation in cases where discrimination is found and utilised for the purposes of having a persuasive effect on the Respondent, in this case a public body, to take all necessary steps to apply the legislation and to prevent discrimination into the future.
53. As this case has raised a serious concern regarding a lack of comprehension on the part of the Respondent’s decision makers of their obligations to employees in the emergency services under Section 16 of the Employment Equality Act the potential for the continuation of that incomprehension for similar employees in the future, an order will be issued to ensure that a systematic arrangement is put in place to ensure that the provisions of the Act including specifically section 16 are applied in the emergency services within the HSE in any future cases where an employee with a disability is seeking to re- access their employment with that disability. Necessary awareness training forms part of the order.
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.
The complaint brought by Marie O Shea against the HSE is well founded. Redress is in two forms:
a) An order that the HSE will review the application of the Employment Equality Act 1998 with a view to preparing written guidelines and training for line managers and HR specifically in the emergency services within the HSE as to how they to apply the terms of Section 16 of the Act within their sphere of influence no later than six months from the date of issue of this Decision.
b) By application of Section 82 of the Act, Marie O Shea to receive compensation of €65000 in respect of the act of discrimination against her on grounds of disability.
Dated: 16th August 2021
Workplace Relations Commission Adjudication Officer: Janet Hughes