Antrim nurse awarded £16k by industrial tribunal
Pacemaker Press 22/2/2013 Angela McCracken who has just won her case at the Industrial Tribunal supported by the Equality Commission for Northern Ireland Pic Colm Lenaghan/Pacemaker
A NURSING auxiliary with a disability, whose employer failed in their duty to act promptly to put a reasonable adjustment in place to allow her to return to work, has been awarded £16,684.22 by an industrial tribunal.
The case, supported by the Equality Commission, was taken by Angela McCracken against the Northern Health and Social Care Trust.
Ms McCracken developed a degenerative eye condition, retinitis pigmentosa. Her central vision is not affected but she has no peripheral vision and experiences temporary difficulties in adjusting to changes in lighting, such as when lights are switched on or dimmed, or when moving from a darkened indoor setting to outside or vice versa.
She notified the Trust in August 2011 that she was ready to return to work after maternity leave and was referred to the Trust’s Occupational Health Department.
The Occupational Health Consultant reported in September 2011 and again, after having received a report from a Consultant Ophthalmologist, in October 2011.
He stated that Ms McCracken was fit for work and that she “should only be placed in work where it is brightly lit”.
He set out clear steps to be taken, involving contact with a disabled employment advisor from the Department of Employment and Learning and an RNIB liaison officer, to discuss how her job could be adjusted to accommodate her visual impairment.
He also signaled his willingness to take part in detailed discussions concerning the way forward.
The Tribunal concluded that this clear advice was not acted upon by Ms McCracken’s employers within a reasonable timeframe.
There was a further series of meetings in 2011 and, on January 26 2012, Ms McCracken’s DEL Disablement Adviser was given the clear impression that Ms McCracken’s request for a reasonable adjustment to enable her to continue working in her employment had been refused.
After a further meeting on February 2 at which Ms McCracken was told in person that her employment was terminated, she initiated a grievance.
It was September 2012 before she was able to return to work and the final adjustments which the Tribunal considered to be reasonable, regarding the wards and the hours within which she could work, were not made until December 2012.
The Tribunal concluded that “from August 22 2011, the Trust was under a duty to properly, that is promptly, consider Ms McCracken’s request for a reasonable adjustment to enable her to return to work at Holywell”.
The Tribunal found that as the Trust ultimately, in December 2012, put a reasonable adjustment in place, it did not directly discriminate against Ms McCracken on grounds of her disability.
It went on to state, however, that the Trust “did fail in its duty to put a reasonable adjustment in place by delaying that process and the reasonable adjustment could and should have been in place by no later than January 26 2012”.
The Tribunal found that the trust “had considerable resources at its beck and call with which to reach a reasoned decision within a reasonable timeframe. In the unanimous opinion of the Tribunal, it did not do so”.
The award of £16,684 covered financial loss from January 26 to August 2 2012 and included £6,419 for “injury to feelings as a result of the unwarranted delay” which was increased by a further 10 per cent because the Trust failed to comply with the Labour Relations Agency Code in relation to the grievance procedure.
Ms McCracken said: “I am glad to be back at work and that I have been able to get my life back on track.
“That period where my eyesight was deteriorating was extremely difficult for me, I was also coping with a new baby and a toddler.
“The delays I encountered when trying to get a reasonable adjustment to allow me to get back to work made it even more stressful, and being informed that my employment was being terminated caused me a lot of distress.
“I hope that the message of this decision is heeded by other employers, so that no-one else has to go through the same long-drawn-out process that I had.”
Anne McKernan, Director of Legal Services for the Equality Commission, said: “This case highlights the importance to employers of responding to requests for reasonable adjustments, not just in the terms of changes made, but promptly.
“Angela McCracken is, as the Tribunal has clearly stated, an experienced health service worker facing a significant medical condition with courage, who wanted to continue to work.
“The Tribunal found that, in dealing with her, the Trust lacked any degree of focus or urgency and allowed its own considerations and its own lack of organisation to far outweigh the personal impact its actions were having on her.
“My advice to employers is contained in a sentence from the Tribunal’s decision: ‘It is absolutely crucial that any employer in these circumstances should move quickly’.”
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Wednesday 22 May 2013
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