Care home worker left 'in limbo' awarded €22,000
A HIV-positive care worker who was taken off the roster at a nursing home after disclosing her medical history to her employer has been awarded €22,500 for disability discrimination.
The Workplace Relations Commission (WRC) adjudicator wrote that upon finding out the worker's HIV status, Abbot Close Nursing Home Ltd "downed tools in the hope the complainant would quietly move on".
The tribunal found the worker was delayed getting a professional qualification and left "in limbo" with her career because it meant she was unable to finish her work experience.
The care worker, Ms S, gave evidence that she started at the nursing home on work experience towards an accredited pre-nursing course in the summer of 2023. She was offered a contract of employment as a healthcare assistant within three days and signed an employment contract less than a fortnight later, she said.
Her evidence was that she was "not rostered for work" after her first month, having brought a medical screening form to her GP to complete and returning it with details of what medication she was on.
Her employer asked her for a report from an "occupational health therapist" – but when she attended a hospital she was told she would need a referral to get an appointment, she told the tribunal.
Ms S told the tribunal she felt "clueless" about what to do next. After speaking to the assistant director of nursing who hired her, she then approached the infectious diseases unit at a hospital where she was receiving treatment herself and gave consent for her consulting doctors to engage with her employer, she said.
She suggested to her employer that she resume her work experience while waiting for the medical report to issue, but received no response, she said.
The complainant's barrister Liam O’Flaherty BL, appearing instructed by Purtill Woulfe Murphy Solicitors, submitted that Ms S’s consultant doctor wrote to the employer -- with the letter raising no concern about her ability to work at the nursing home and offering to provide any further information needed.
Ms S’s evidence was that after just over two months without being rostered for work, she went to the workplace and donned her uniform – whereupon another worker was sent by the assistant director of nursing (ADON) to ask "who she was and why she was there".
She said she then went to the ADON, who told her she "had to leave the premises immediately" and "refused" to let her finish her work experience.
After asking for a letter setting this out in writing, the ADON went into a safety manager’s office before emerging and saying it would be posted to her, Ms S said. She added that no such letter came prior to her giving evidence at the WRC last month.
The ADON told the tribunal that a "medical health officer" who examined Ms S’s medical questionnaire advised there would be "no issue" as long as the complainant had "monthly occupational health reports".
She said the employer was "trying to find a solution". She said she did not allow Ms S continue with her work experience while "trying to determine the next steps" as Ms S "had not completed her training".
When asked if it was the "usual practice" of the business to require a worker to get a monthly occupational health report at their own expense, the respondent’s safety manager said the firm had consulted with "public health" and that was the advice it had received.
In her decision, adjudicator Úna Glazier-Farmer wrote: "Prior to being on notice of [Ms S’s] disability, the respondent moved expeditiously to offer her a role, but upon finding out she was HIV-positive, it simply downed tools in the hope the complainant would quietly move on."
"Numerous" requests by Ms S for a letter setting out the hours of work experience she had done went unanswered, leaving the worker "in limbo regarding her career," Ms Glazier-Farmer noted.
It was November 2023 before Ms S was able to find a new work experience placement and August 2024 before she obtained employment, the tribunal noted.
This less favourable treatment "resulted in [her] constructive dismissal due to the respondent’s conduct," Ms Glazier-Farmer wrote. She found the dismissal was discriminatory.
"Based on the CUH report, the complainant’s disability allowed her to work with the respondent without concern for herself, other staff, or the residents," Ms Glazier-Farmer wrote.
"I find that the complainant, having made every effort to provide medical evidence of her fitness to work, was treated less favourably by the respondent, leading to discrimination in accessing her employment," Ms Glazier-Farmer added.
The adjudicator awarded Ms S €10,000 in compensation for discriminatory dismissal, taking into account her short service with the care home. Ms Glazier-Farmer awarded a further €12,500 for discriminatory treatment in the care home’s failure to provide reasonable accommodation and access to employment, in breach of the Employment Equality Act.
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