This week we look at a recent Labour Court case in which a paramedic claimed to have been the victim of discrimination when her employer failed to afford her "light duties" after she injured her wrist outside of work. Our Adrian Twomey highlights the key points to note in the case of Health Services Executive v O'Shea, EDA2227.
The Complainant, Marie O'Shea, is or was a paramedic employed by the Health Services Executive (HSE). She had an accident outside of work in July 2018 and suffered a serious injury to her wrist. She was out of work and availing of sick pay for a number of months afterwards.
The HSE's Occupational Health team deemed Ms O'Shea fit to undertake light or modified duties in February 2019. Certain alternative roles were considered but found to be unsuitable. She was eventually offered, and accepted, a temporary role as a telephonist in March 2020. Two months later, she was found to be fit to resume her full duties as a paramedic.
Ms O'Shea initiated a complaint to the Workplace Relations Commission (WRC) under the Employment Equality Act 1998 (as amended). In essence, she argued that:
Her wrist injury constituted a "disability" for the purposes of the employment equality legislation;
The HSE breached its' statutory obligation to provide her with "reasonable accommodation" in light of her disability by failing to provide her with an alternative role as soon as occupational health found her fit to perform "light duties"; and
The HSE discriminated against her by not returning her to her normal paramedic role until occupational health certified her as being fully fit to perform the full range of duties associated with that role.
The WRC Adjudication Officer found in favour of Ms O'Shea and awarded her €65,000. The HSE appealed that decision to the Labour Court. The Labour Court's decision was issued on 3 November 2022.
On the first of the three points identified above, the Court noted that the parties were in agreement that Ms O'Shea's wrist injury constituted a disability within the meaning of the legislation.
Was the HSE then obliged to provide Ms O'Shea with alternative "light duties" in light of the legal obligation to afford "reasonable accommodation" to employees with disabilities? According to the Court, it was not. The Court quoted the Supreme Court judgment in the case of Nano Nagle v Daly, [2019] 30 ELR 221:
“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.”
As for Ms O'Shea's third point, the Court said:
"the Court’s is 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. It follows that to allow a paramedic who lacks the aforementioned levels of fitness, competence or dexterity to practice would be to do precisely what McMenamin J 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 Respondent 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 Complainant and her level of ability to perform, or not, a range of essential duties inherent to her role."
On that basis, the Court upheld the HSE's appeal and effectively dismissed the Complainant's case.
The Court's decision seems to us to make good sense and to give clear guidance to employers on what can be a very tricky issue. Those who require advice in relation to employment law cases or who need representation before the WRC or Labour Court can contact our Adrian Twomey.
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