The HSE appealed a recent equality award of €65,000 from the Workplace Relations Commission to the Labour Court on the grounds that it did not discriminate against an employee on the grounds of disability. The HSE was successful and the Labour Court overturned the award against it. A link to the decision in HSE v Marie O’Shea EDA2227 can be found here.
We have given a brief overview of the case below and the key learning points to be taken from it. At the outset it should be noted that certain terms within the Employment Equality Acts 1998 (as amended) are specifically defined and may appear odd at first reading. For example “reasonable accommodation” for someone with a “disability” under the Acts means that an employer has a legal obligation to put steps in place within the workplace to assist the person once they have a recognised “disability” under the Act. “Disability” under the Act covers a wide range of physical and mental illness such as stress, anxiety, depression, alcoholism, anorexia and many other physical injuries. For example, if an employee is suffering with a medical diagnosis of severe stress and has medical evidence to substantiate this, part of the “reasonable accommodation” an employer may consider is allowing the employee to return to work on a phased basis to alleviate the stress etc. An employer is not legally required to put reasonable accommodation in place which may result in a disproportionate cost to them or design or create a new role for the employee.
Background
The employee in this case had argued that the HSE failed to accommodate her as regards a return to work following an injury and did not provide reasonable accommodation or engage in a proper assessment of what appropriate measures could be taken to facilitate or assist her return to work.
The HSE argued that the accommodation sought by the employee in respect of the period during which she was recovering from her injury (i.e. re-deployment to an alternative position) was not reasonable accommodation within the meaning of the Employment Equality Acts and that it not only complied in all respects with its obligations to her under the Act but went above and beyond its statutory obligations.
The Workplace Relations Commission had previously found in the employee’s favour and awarded her €65,000 for discrimination as well as ordering the HSE to prepare written guidelines and training for line managers and HR specifically in the emergency services within the HSE as to how they apply the terms of reasonable accommodation within the Act within 6 months of the date of the decision.
In this case the employee had been employed as a paramedic initially by the Mid-Western Health Board and subsequently by the HSE. The employee subsequently sustained a serious injury to her right wrist in a non-work-related accident. The employee availed of the HSE sick pay scheme for six months and thereafter she was approved for temporary rehabilitation remuneration and was deemed eligible for the Critical Illness Protocol. This was because the employee suffered complex pain syndrome and other complications following her injury.
It appeared also to be the case that other employees were transferred, on a temporary basis, to alternative – usually administrative – roles. The employee in this case has also regularly communicated her wish to be provided with a suitable alternative temporary role as a gateway to returning to her substantive post as soon as Occupational Health deemed her fit to undertake light or modified duties. The employee was offered and accepted a temporary alternative role working as a telephonist for a period of months until she was deemed medically fit to undertake her full range of duties as a paramedic.
Various medical reports were put in evidence in respect of when the employee may be fit to return to normal paramedic duties.
The Law
The Labour Court considered the Law in this area.
Section 16(3) of the Employment Equality Acts provides:
“(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,
- (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.”
The Court also looked at the Supreme Court case of Nano Nagle v Marie Daly[2019] 30 ELR 221.
The Labour Court considered that the employee had 2 elements to her claim
(1) The HSE was in breach of the Act by reason of its failure to provide her with an alternative role as soon as she was deemed fit by Occupational Health to undertake light or modified duties. The employee also named a number of paramedic colleagues whom she said had been ‘accommodated’ in this way.
The Court referred to the Nano Nagle decision that the Act places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired. The Court noted that the employee was redployed to another role. The employee also did not state that her colleague’s redeployment had occurred immediately after they had been certified unfit to perform the duties of their substantive post or within a shorter timeframe than that that applied in her case.
(2) The employee also claimed that the HSE failed to return her to her substantive position until Occupational Health certified her fully fit to perform the full range of duties associated with that position. The employee argued this was a failure on the part of the HSE to provide her with reasonable accommodation or to engage in a proper assessment of what appropriate measures could be taken to facilitate her return to her substantive job.
The HSE argued that both medical reports submitted to it by Occupational Health following its regular and ongoing assessments of the employee and its innate understanding of the nature of the job, core to which is the imperative that a paramedic must be able to perform each and every task associated with the role. It also argued that at no stage did the employee object to, or seek to challenge, the assessment of her medical condition and fitness to work as determined by Occupational Health. The HSE also argued that it took relevant appropriate measures to ensure that the employee, notwithstanding her disability, had continued access to employment and that:
(a) She was paid sick pay at full rate, half pay and TRR in the aggregate sum of €29,180.13 while was unfit to work;
(b) Her fitness to return to work was regularly assessed;
(c) The HSE considered whether alternative duties could be given to her during the period when she was unable to complete the essential duties of her role;
(d) The HSE tried to allocate her to duties of her grade when such duties became available. When it did so, the employee was paid her full paramedic salary, plus premium payments and allowances, during a period when she was carrying out the duties of a telephone operator;
(e) When the employee became fit enough to carry out the duties of a paramedic, the HSE engaged in a graduated return to work process that facilitated her return to full duties as a paramedic.
Court Determination/Decision
The Labour Court again looked at the Nano Nagle decision and noted:
“The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job.”
The Court heard extensive evidence in this case in relation to the job of a paramedic and was satisfied that an irreducible minimum requirement of the job is that each member of a two-member team of paramedics deployed on an ambulance is fully fit and competent, and sufficiently dexterous, to be able to perform the full range of clinical interventions that a paramedic may be called upon to perform and to transport patients and relatively heavy equipment into and out of the ambulance with despatch and without posing any unnecessary risk to the patient or themselves. The Court further noted that to allow a paramedic who lacks the aforementioned levels of fitness, competence or dexterity to practice would be to do precisely what the Nano Nagle case said an employer is not under a duty to do i.e. “to re-designate or create a different job to facilitate an employee”.
The Labour court found that the HSE was entirely justified, in the Court’s judgment, in relying on the Occupational Health reports it received on a regular basis in relation to the employee and her level of ability to perform, or not, a range of essential duties inherent to her role. As soon, as the reports indicated a sufficiently positive improvement in her condition, the HSE engaged in a comprehensive and graduated programme that facilitated the employee’s return to service as a paramedic.
The Court found that the HSE rebutted any inference of dicrimination and set aside or overturned the Workplace Relations Commission decision to award the employee €65,000 compensation for the effects of discrimination.
Caselaw Learning Point
Once an employer is aware than an employee has a “disability” under Irish Employment Equality law, they must take necessary steps to ensure the employee is “reasonably accommodated” in respect of that job and send the employee for regular occupational health reviews to understand what steps, if any, the employer must take to ensure the employee can ultimately return to their previous role. This case demonstrates that an employer is not under any obligation to re-design or create a different job to facilitate or help the employee.
