AOC Solicitors COVID-19 Hub - Read More

AOC
- News

AOC
- News

Employer ordered to pay Employee on sick leave for endangering the employee’s physical or mental wellbeing despite instructions forming part of his terms of employment.

Facts:

The Complainant worked as a carer for the Respondent, who was a disability services provider. An issue arose in which he did not feel comfortable attending to the intimate care of female service users. Whilst it used to be a policy that male carers could not carry out intimate caring of female service users, this policy had changed. When the Complainant refused to carry out the Respondents instructions he was given a verbal warning by the Respondent which stated that all care staff must attend the hygiene needs of all service users, male or female. The Complainant has been on sick leave since early 2018.

Findings:

The Adjudicator found that an employer should not put an employee in a position where there may be an endangerment to his or her mental or physical wellbeing. The Adjudicator noted that the contract of employment required all workers to carry out the full duties for which they are employed, however the same document states that service users must act with dignity and respect. This requirement is impossible when the care worker has an issue with providing hygiene care to females. The Adjudicator noted that the verbal warning provided by the Respondent is insufficient in rectifying the situation. Some solution must be found which enables the Complainant to return to work.

The Adjudicator held that the Complainant should be returned to the payroll from the date of this recommendation and that the Respondent facilitates the complainant in a residence where his genuine fear around attending female hygiene care is allayed.

An issue which was not explored s that of a protected disclosure. It is submitted that the complainant made a comment about the standard of service. This was followed by a transfer by the respondent of the complaint to an all-male care home. One must decipher but for the comments made, would the complainant have been transferred? If the answer to this is affirmative, the complainant could submit that this protected disclosure was met with penalisation by the employer.

Take away for employers:

Employers should note that employees cannot be placed in a situation in which the work being required May or is causing mental or physical endangerment to workers. It is evident from this case that the test for reasonable work is subjective. A job will be deemed to endanger a worker’s physical or mental health when the employee honestly believes it to be endangering.

https://www.workplacerelations.ie/en/cases/2019/july/%20adj-00016637adj-00016637.html

1st August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

Related Articles