The complainant worked as a Call Handling Co-ordinator in the Out-of-Hours GP service and was diagnosed with a retinal detachment in April 2010.  She ultimately lost the sight in her eye.  She returned to work on 28 June 2010.  She sought a move to day shift working.  She asserted her reason for seeking the change was because of her concerns about night driving due to her disability but the respondent asserts she sought the change because she had a bad working relationship with her colleagues on the roster.  The respondent asserted that despite it not being a request for appropriate measures within the meaning of the Acts she was accommodated in the short term.

Following a visit to the Occupational Health professional the complainant was certified fit for work on the advice that she avoid “night work for 6 months to allow accommodation of eye condition”.  The respondent asserts it adhered to this strictly.  The Equality Officer found that 6 weeks after the complainant requested the appropriate measures be discontinued she was accommodated on the more lucrative Out-of-hours roster.

The complainant asserted that she was not permitted to take 5-minute screen breaks.  The respondent asserted that it would not expect people in a supervisory role to seek permission for a break from a screen.  The Equality Officer stated in this regard “this fits into the category of Section 16(4)(c), i.e. the employee has to take some responsibility for her own wellbeing”.

The complainant went on to make a number of assertions about a disciplinary warning not being removed from her file appropriately; about the attempted delivery of letters to her in a branded jeep by the respondent being a bullying tactic.  The respondent accepted that the jeep was used to attempt delivery but that this was normal practice and well known to the complainant.  The respondent also stated that the complainant was found lying in a sleeping bag during a red-eye shift which it asserts is gross misconduct but is adamant that the warning was removed from her file.  (The respondent pointed out that having the sleeping bag with her suggests premeditation.)

The Equality Officer dealt with the substantive matters very succinctly.  She preferred the respondent’s evidence in relation to the complainant seeking day-time shifts.  Documentary evidence was produced to show that the OH recommendations were strictly adhered to even when it caused industrial relations issues with other staff.

The Equality Officer goes on the say “In fact, the HSE is to be complimented on its efforts to provide and protect reasonable accommodation to the complainant in a time of budget cuts, reduced headcount and industrial relations issues”.  The case was distinguished from the cases cited by the complainant because the complainant has not been dismissed.  The Equality Officer found that the complainant has failed to establish a prima facie case of discrimination on the disability ground.

Why this case is of interest:

• This case will be of interest to employers in determining how to handle situations where reasonable accommodation arises particularly where the accommodation is declined by the employee at any stage in favour of more lucrative attendance patterns.