Complainant

Respondent

Parties

Tracy  O'Meara

Health Service Executive

Representatives

  Self-represented

Employee Relations Manager

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00061347-003

26/01/2024

The complainant is employed by the respondent as a healthcare assistant.  She has been out of work since August 2022 on certified sick leave.

Claims of discrimination, harassment and victimisation under the Employment Equality Acts 1998-2015 were referred to the Workplace Relations Commission on 26 January 2024.

Summary of submissions

The complainant suffers from a repetitive strain injury, which is a disability within the meaning of the Employment Equality Acts 1998-2015 (the “Acts”).

The complainant has worked with the respondent under a permanent contract of employment as a healthcare assistant since 2000.

She never had any issues in employment with the respondent until she sustained a work-related injury in 2021.  The complainant was absent from work for a period in mid-2021 due to the injury.  On return to work in July 2021, the complainant was accommodated as a special on a ward for a period prior to being redeployed due to pandemic-related circumstances.  Redeployed staff returned to ward work in March 2022.  The complainant did not return to work as a special in March 2022, but was moved around the hospital to fill in staff shortages.  The complainant was unable to lift and work in the same way as other healthcare assistants on the ward and had to request a return to work as a special on the ward she had previously worked.  In or around June/July 2022, the role of special on a one-to-one basis changed to that of one staff member per six patients requiring intense monitoring.  Due to the complainant’s medical history, of which management was aware, the complainant could not safely undertake the role.  The complainant explained to management the difficulties she was experiencing, and the consequent effects on other staff members.  The complainant sustained the role for two weeks in the hope that her engagement with management would result in changing her role to one that was more suitable.

Management did not adhere to their policies and procedures in rehabilitating staff with an injury.  

The complainant commenced a period of sick leave in August 2022.  Up to November 2022, occupational health assessed the complainant as fit to work in a non-manual handling role.  On 9 November 2022, occupational health assessed the complainant unfit to work on the understanding that accommodated roles are not available for this cadre of staff.

Risk assessments and accommodation for the complainant were not addressed until 2023.

Alleged acts of discrimination, mistreatment and harassment were detailed from 2018 and as continuing in February 2025, including in relation to a return to the original place of work in March 2022 following redeployment, and accommodation further to an occupational health report.  There were no meetings with the complainant to discuss the outcome of occupational health assessments, no communications or support for the complainant to be accommodated and no effort to accommodate the complainant in a more suitable role.  Referrals to occupational health have not been consistent.  The lack of support and/or efforts to accommodate or redeploy the complainant made her feel that she was being penalised for raising issues previously, including a health and safety issue in 2018 and 2019, and for commencing a grievance process in July 2022.

The complainant has been subjected to discrimination, harassment and victimisation, which is continuing.  In this regard, the complainant referred to the communications from HR regarding occupational health appointments and the respondent’s ongoing failure to address and provide reasonable accommodation.

The complainant has suffered distress and serious health issues and seeks compensation and/or certain courses of action.

The complainant is submitting monthly certificates from her GP which deem her unit for work as a healthcare assistant.   The complainant was certified by occupational health in November 2023 as fit for a sedentary role.  The respondent has not engaged with the complainant following the occupational health assessments.  The complainant is seeking to return to work, or alternatively to avail of the injured at work scheme.

Summary of complainant’s evidence

The complainant’s tendonitis is a disability and the respondent has not provided a suitable role by way of accommodation for the complainant to return to work.  This is less favourable treatment vis-à-vis other employees who have returned to work or been redeployed following injury. 

The complainant was discriminated against in March 2022 when everyone else who had been redeployed returned to their place of work. The complainant was moved around the hospital until she requested rostering for a patient that required one-to-one special care.  The complainant had previously been accommodated in a special care role on a return to work following absence in July/August 2021.   The complainant was redeployed from November 2021 to March 2022 for reasons unrelated to her shoulder condition.    The complainant undertook office-based work from December 2021 to March 2022. 

The complainant considers herself fit to do special care work on a one-to-one basis.

Under cross-examination, the complainant agreed that providing special care does require direct patient interaction and may involve manual handling.   The complainant did not accept that the number of occupational health referrals made by management evidenced their concern and efforts to put in place reasonable accommodation as management did not discuss any of the occupational health reports directly with the complainant.

Summary of submissions

A preliminary issue was raised concerning the statutory requirements around referral of the claims to the WRC where the complainant detailed the last date or act of discrimination or victimisation as having occurred in July 2021.  The complainant confirmed this subsequently in response to a query from the WRC.  The complainant was in receipt of legal advice in or around this time.  Management presumed that the case the complainant wished to make was that the respondent had failed to provide the complainant with reasonable accommodation for her disability notwithstanding this not having been substantiated by the complainant.

Without prejudice to the foregoing, the complainant is employed as a healthcare assistant, which is a patient facing role, requiring interaction with patients such as moving, handling and lifting. 

The complainant suffered a significant shoulder injury in or around 2020 which has rendered her unfit to carry out her role as a healthcare assistant within the hospital she is employed.  The complainant was fully supported by management in every possible way, including with referrals to occupational health.  Management complied with all occupational health reports and carried out risk assessments in relation to the complainant’s role and other possible roles by way of accommodation for a return to work.  There is a 5kg repetitive lifting and manual handling restriction arising from occupational health assessment which management must have regard to and which means it is not possible to facilitate the complainant with a healthcare assistant role.  Management at the respondent hospital have carried out extensive and exhaustive efforts to find a role to accommodate the complainant as a healthcare assistant in line with occupational health advice.   Equality legislation does not require making another role for the complainant rather the duty around accommodation is in respect of the complainant’s role as a healthcare assistant.

There is no evidence to support the claim that management have discriminated against the complainant on grounds of her disability.

The complainant does not substantiate the claim of victimisation and does not meet the relevant burden of proof.  The respondent is unaware of the grounds for this claim or when it is alleged to have occurred.   The allegation of victimisation is without detail and foundation and is wholly refuted.  The statutory timeframe for referral of any such claim was reiterated.

The respondent disputes the claims of discrimination, harassment and victimisation. 

The Director of Nursing at the hospital, Caroline Keyes, gave evidence of staffing at the hospital and the reporting line for the healthcare assistant role.  She also outlined the dynamic situation in the hospital during Covid.  The expectation of the witness regarding the complainant doing special work on a 6-bed ward was that the complainant would be assisted in relation to any manual handling she was unable to do.

The Director of Operations at the hospital, Laura Waters, gave evidence in relation to being appointed to deal with stage 2 of the grievance procedure in respect of the complainant’s appeal on 15 May 2023 of the outcome at stage 1.  There was a meeting in June 2023, which was attended by the complainant’s solicitor, to discuss the grievance.  The complainant expressed a desire to return to work in a capacity other than as healthcare assistant.  There was also a suggestion to move to mediation.  The witness agreed at the meeting to look into roles in the hospital by way of accommodation.  The witness outlined the alternative roles explored for the complainant, including in CSSD and HRD, and of role risk assessments having regard to the occupational health recommendations.   In an effort to move things forward, the witness sought to link back in with occupational health to see if the weight restriction could be increased.  There was a delay by the complainant in reattending occupational health for this purpose; there were 3/4 appointments that did not proceed.  The complainant referred this case to the WRC shortly thereafter.

In response to the complainant’s questions, the witness did not accept that she had not contacted the complainant throughout stage 2 of the grievance procedure.  The witness described how risk assessment was not about an individual in the role, but whether the role could be completed with the weight restriction in place for the complainant.  In January 2024, the witness was made aware that the solicitor who she had been communicating with no longer represented the complainant.    

The complainant used the Workplace Relation Commission’s complaint form to refer to the Commission on 26 January 2024 complaints of discrimination and victimisation under the Employment Equality Acts 1998-2015 (the “Acts”).

Following a complaint application validation check carried out by the Commission, the complainant advised the Commission in February 2024 that the most recent date of discrimination/victimisation was in July 2021 “when management changed my working environment to one that they knew I wasn’t capable of doing with an injury to my shoulders … This subsequently forced me to go on sick leave in August 2021.” 

There was substantial documentation submitted by or on behalf of the complainant in relation to the complainant’s case on various dates between February 2024 and 12 February 2025. 

On 10 January 2025, the complainant retracted submissions previously submitted on her behalf and advised of a mistake in the last date of discrimination being July 2021. 

Submissions received on 12 February 2025, referred to discrimination and marginalisation of the complainant by the respondent at the time of lodgement of the complaint application with the Commission in January 2024 and a failure to offer the complainant suitable alternative employment.  Supporting documentation included communications, reports and matters dating from 2018 to January 2025.

The respondent objected to the way in which the complainant had pursued these claims against the respondent.  It submitted that the complainant’s claims against the respondent had evolved through the various submissions made after the complaint application with the effect that the claims now differ from those originally referred to the Commission.  It further submitted that this was not appropriate and had caused confusion as to the claims the respondent was expected to meet.

I agree with the respondent insofar as the piecemeal and evolving manner in which the complainant presented her case was not ideal from a case management perspective, and gave rise to some confusion on the timeline and dates of matters complained of.  The complainant submitted supporting documentation on three different dates in February and March 2024. There followed submissions in November 2024 which the complainant subsequently advised she wished to retract.  Submissions received in February 2025 were expressed to be supplemental to and in addition to all previous submissions made.  The February 2025 submissions are more expansive than previous submissions and complain of harassment and discrimination continuing grounded on events in 2024.

The Complaint Application of 26 January 2024

The sections marked by the complainant on the original complaint application were of discrimination on grounds of disability in relation to conditions of employment, harassment and victimisation.  The complainant did not mark a complaint of failure to give reasonable accommodation for a disability.   However, a statement provided by the complainant in the same complaint form refers to accommodation and the respondent’s alleged failure to follow its policies and procedures when dealing with injured staff.  I have reviewed the relevant rehabilitation procedures and am satisfied that an objective of same is to give effect to an employer’s responsibilities under section 16 of the Acts in relation to reasonable accommodation.  The respondent, by its own written submissions of November 2024, expressed the presumption that the case the complainant wished to make was that the respondent had failed to provide her with reasonable accommodation for her disability.  Accordingly, I am satisfied that an aspect of the complainant’s discrimination claim referred to the Commission on 26 January 2024 was of failure to provide reasonable accommodation and that the respondent was on notice of same at the time it lodged its written submissions with the Commission in November 2024.

Claims and matters complained of on dates after referral of the case to the Commission, raised by way of written submissions in February 2025 in respect of the original complaint application, were not properly before me for adjudication.  As a matter of fair procedures, I do not consider it appropriate to adjudicate on claims post-dating the complaint application and raised in submissions of February 2025 just prior to the hearing of the original complaint application.  

Time Limits

There are time limits for referral of claims to the Commission seeking redress under the Acts for discrimination or victimisation.  I am satisfied that section 77(5) of the Acts is applicable to the facts of this case.  The complainant did not assert, nor do the facts support, a discriminatory regime, rule, practice or principle which had a clear and adverse effect on the complainant within the meaning of section 77(6A) of the Acts.  In this regard, the accommodations for the complainant in 2021 and 2022 are relevant.

Section 77(5) of the Acts require a claim for redress be initiated within six months of the date of the alleged act of discrimination or victimisation or, the date of its most recent occurrence.  The six-month period may be extended to 12 months on application for reasonable cause however this does not arise in this case based on the manner in which the case was presented. 

In this case, for the claims to have been initiated within the statutory timeframe time, and in order for acts or omissions outside the time limit to be taken into account, there must have been an act of discrimination or victimisation within the cognisable six-month period from 27 July 2023 to 26 January 2024. 

Burden of Proof

Section 85A of the Acts deals with the burden of proof in claims under the Acts.  In the first instance a complainant must establish facts from which discrimination may be inferred; thereafter the burden of proof passes to the respondent to rebut the presumption of discrimination.  Section 85A states as follows:-

"Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."

The Labour Court’s determination in Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 on section 85A and the establishment of facts is instructive:-

“All that is required is that they be of sufficient significant to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

Victimisation

Victimisation is defined in section 74(2) of the Acts.  It occurs where dismissal or other adverse treatment of an employee occurs as a reaction to certain protected matters, including where an employee raises a complaint of discrimination or initiates proceedings. 

Findings

The complainant has worked as a healthcare assistant with the respondent for 18 years. 

The evidence clarified that the complainant did not go on sick leave in August 2021, as initially detailed by the complainant in her complaint form.  The oral evidence and supporting documentation confirmed that the complainant returned to work from a period of certified leave in or around July / August 2021.  The complainant commenced a further period of certified leave in August 2022 due to an exacerbation of her symptoms.  The latter mentioned leave was continuing at the date of the hearing.

Discrimination on grounds of disability

It was common case between the parties that the complainant has a disability within the meaning of the Acts.  On review of the uncontested medical reports, I am also satisfied of the complainant having a disability within the meaning of the Acts at the relevant time.   The complainant has a history of shoulder pain.  An occupational health report dated 27 March 2023 refers to symptoms of illness which are disabling, including bilateral shoulder pain restricting the complainant’s ability to carry out everyday tasks at home.  I understand the role of healthcare assistant to be a patient facing role with patient interaction involving moving, handling and lifting.  The medical opinion in March 2023 was that manual handling was likely to exacerbate further shoulder pain and that it was possible the complainant’s role may aggravate her symptoms.  The complainant’s medical report of February 2024 referred to an MRI performed in December 2023 showing supraspinatus tendinosis with articular surface tears and bursitis.   Based on the evidence before me, the complainant’s symptoms were such that her full and effective participation in employment with the respondent was hindered.  I find that the complainant’s tendinosis is a disability within the meaning of section 2(1)(c) of the Acts.

The occupational health report of 27 March 2023 deemed the complainant unfit to work.  The professional opinion was that the complainant refrain from manual handling for the foreseeable future and supported accommodation of the complainant with a non-manual handling role on medical grounds.   An amended report of the same date included a 5kg weight restriction.   A subsequent assessment by the same physician on 21 November 2023 was that the complainant remained unfit to carry out manual handling and remained unfit to lift weight over 5kg.  The report deemed the complainant fit for a sedentary role if that was made available. 

The complainant’s disability in the cognisable period was such that her full and effective participation in employment was hindered and the respondent’s duty under section 16(3) of the Acts engaged. 

The respondent submitted that it had complied with all occupational health reports and carried out risk assessments of the complainant’s role and possible roles where she might be accommodated in a return to work. 

The occupational health report of 27 March 2023 deemed the complainant as unfit for work at that time and anticipated a further period of sick leave “of several weeks possibly longer”.  It is unclear to me when exactly the complainant recovered sufficiently to return to work.  It is however clear that there was engagement between the parties in June 2023 regarding the complainant’s grievance.  The occupational health report of 27 March 2023 set out the professional opinion that, on a return to work, the complainant refrain from manual handling for the foreseeable future.  The physician supported the complainant being accommodated with a non-manual handling role on medical grounds.   The report also detailed a repetitive lifting and manual handling restriction of 5kg.   There was no medical evidence before me which contradicted the foregoing. 

The hospital’s Director of Nursing contacted the respondent’s HR further to the occupational health report of March 2023.  The evidence of the hospital’s Director of Operations, Laura Waters, was of looking into accommodations for the complainant in a role in the hospital in or around June / July 2023.  Ms Waters looked at alternative roles for the complainant in the Central Sterile Services Department (“CSSD”) and in the Healthcare Records Department (“HRD”), and as healthcare assistant in paediatrics and maternity services, however these roles were deemed not viable due to the 5kg weight restriction.  I was provided by the complainant with copy risk assessment forms completed in July 2023 in respect of the roles in CSSD and HRD.  The Operations Director sought to engage with occupational health to see if the weight of the restriction could be increased so as to make the role in CSSD work.  This was further to a risk assessment outcome of the CSSD role which established weight bearing of equipment in or around 7kg.  The complainant’s own evidence was that the role in CSSD would have been unsuitable for her. 

Ms Waters’ evidence was of encountering difficulties in making contact with the complainant’s solicitor during this period and of the complainant not engaging with the respondent in its efforts to arrange a further occupational health appointment for her.  Documentary evidence submitted by the complainant includes an email from Ms Waters to the complainant’s solicitor of 17 July 2023 regarding efforts being made to provide accommodation for the complainant in employment and an email of 16 August 2023 to the complainant advising that the respondent was continuing to scope out options.

Ultimately an occupational health report of 21 November 2023 maintained the 5kg weight restriction and deemed the complainant fit for a sedentary role if this was made available.

In or around the time of the November 2023 occupational health assessment, the complainant emailed the respondent regarding a mediation meeting.  The complainant emailed the respondent an agenda for mediation on 14 December 2023 which agenda included the matter of a suitable working environment.  The respondent contacted the complainant in early January 2024 regarding the agenda and was directed by the complainant to contact her solicitor.  The respondent’s efforts to make contact with the complainant’s solicitor were unsuccessful.  The respondent was advised by the complainant at the end of February 2024 that the solicitor was no longer representing her interests.  The complainant referred this case to the Commission on 26 January 2024.

The medical evidence for the cognisable period was that the complainant was unfit to undertake the role of healthcare assistant and that she refrain from manual handling.   It is worth noting that the medical opinion in the cognisable period was different to that which pertained in August 2021 when the complainant returned to work and was deemed “fit to carry out most of her duties at present while adhering to all safe manual handling practices in the workplace and perhaps it may be appropriate for her to avoid some of the heavier manual handling tasks for the present … if these can be accommodated …”  If such accommodation was not possible, the occupational physician suggested redeployment to another workplace where possible to accommodate.   The complainant returned to work with an initial accommodation in August 2021 that avoided heavier manual handling.  The complainant was redeployed in November 2021 for reasons unrelated to disability.

When redeployment ceased in March 2022, the complainant returned to ward work and secured being rostered on a ward which provided similar accommodation around manual handling.  However, this situation changed in or around June/July 2022 with an increase in heavy lifting and the complainant was certified unfit for work in August 2022.

I do not agree with the submission on behalf of the respondent in relation to equality legislation and reasonable accommodation requirements being in respect of the complainant’s role as a healthcare assistant.  As per the CJEU in HR Rail (C-485/20), reassignment to another job may constitute an appropriate measure provided it does not impose a disproportionate burden on the employer.  The emphasis in HR Rail was on retention in employment rather than the individual role. 

Indeed the evidence in this case demonstrates the respondent engaging in appropriate exploratory action in the cognisable period in discharge of its duty under section 16 of the Acts by looking at other roles in the hospital for the complainant and having regard to the 5kg weight restriction attaching to any such role.  There were communications in July and August 2023 regarding the respondent’s efforts.  Regarding the occupational health recommendation of November 2023 in respect of a sedentary role and the complainant’s submission that she had previously been redeployed to office-based work, I accept that the redeployment in 2021/2022 occurred due to Covid-relevant circumstances and I further find that a sedentary role was to be looked at in the context of a mediation process at local level, which was then superceded by the initiation of this case in the WRC in January 2024. 

Based on the foregoing, I am satisfied that the respondent explored and properly considered reasonable accommodation for the complainant in the period from 27 July 2023 to 26 January 2024. 

Discrimination in conditions of employment

The evidence tendered focused on the provision of reasonable accommodation.  The evidence presented did not demonstrate a prima facie case of less favourable treatment of the complainant in the cognisable period in relation to conditions of employment, or otherwise, on grounds of disability than another person is, has been or would be treated in a comparable situation.

Harassment

Submissions in relation to the claim of harassment refer to March 2022 and the return of redeployed staff to their place of work, a change in the dynamics on the ward in June 2022 in relation to the provision of care, and to continuing alleged harassment in 2024.

Section 14A(7) of the Acts defines harassment in relevant part as:

“… any form of unwanted conduct related to any of the discriminatory grounds,

…

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Harassment constitutes discrimination in relation to an employee’s conditions of employment. 

I am not satisfied that the complainant has established a prima facie case of harassment in the cognisable period.    The complainant has been on certified sick leave since August 2022.  The only contact between the parties in the cognisable period was by way of email communications.  On my review of the emails before me, they do not evidence unwanted conduct related to disability.

Victimisation

There are three components which must be present to ground a claim of victimisation under the Acts:-

(i)               the complainant must have undertaken a protected act of a type referred to at paragraphs (a) to (g) of section 74(2),

(ii)              the complainant must have been subjected to adverse treatment by their employer, and

(iii)            the adverse treatment must be in reaction to the protected act having been taken by the complainant.

The nature of the protected acts in section 74(2)(a) to (g) concern enforcement of rights under the Acts.  The complainant’s evidence was of having made complaints to management about being unable to properly assist with patient care following the change in ward dynamics in June/July 2022.  The complainant invoked the internal grievance procedure in July 2022.  The complainant raised various issues in her grievance however it was her raising of the matter of accommodation on the ward providing special one-to-one care that I find constitutes a protected act for the purposes of section 74 of the Acts.  The evidence however does not support the complainant having been subject to adverse treatment in reaction to that protected act during the cognisable period.  The complainant was not in work over this period, having commenced a period of sick leave shortly after invoking the grievance procedure.  The complainant submitted email communications between the parties during this period and there was nothing in those communications which indicated adverse treatment rather they demonstrate efforts made by the respondent to accommodate the complainant in employment in the latter part of 2023. 

Accordingly, I find that the complainant’s submission that she felt penalised in not being reasonably accommodated for having raised issues and commencing the grievance process is not well founded and that a prima facie case of victimisation within the cognisable period has not been made out.

Conclusion

I find that the respondent did not discriminate against the complainant on grounds of disability in the cognisable period.

I further find that the complainant failed to establish a prima facie case of harassment or victimisation within the meaning of the Acts in the cognisable period.

For the reasons set out above, my decision is that the complainant was not discriminated against or victimised contrary to the Acts in the cognisable period, and that the claims referred to the Commission are not well-founded.  

Disability – Reasonable accommodation - Discrimination – Harassment - Victimisation