A Limerick nursing home has been ordered to pay €22,500 in compensation to a former healthcare assistant (HCA) who was constructively dismissed after it found out she was HIV positive.
The Workplace Relations Commission ruled that the company which operates Abbot Close Nursing Home in Askeaton, Co Limerick, had unfairly dismissed the HCA, Thandekile Sulo, on grounds of her disability.
The WRC heard Ms Sulo was told to leave the nursing home immediately on October 2, 2023, after a period where she had failed to get clarity from her employer about obtaining a report from an occupational health therapist.
It observed that the nursing home had moved expeditiously to offer Ms Sulo a job but it had “simply downed tools in the hope the complainant would move quietly on” after finding out she was HIV positive.
The WRC said it was entirely reasonable for an employer to seek a fitness-to-work medical report but the lack of clear engagement by the nursing home about what exactly it required of Ms Sulo was a concern.
It noted that the nursing home had received a report from Cork University Hospital that the HCA’s disability allowed her to work without concern for herself, other staff or residents but still sought a further report from Ms Sulo at her own expense.
The WRC ruled that Abbot Close had also failed to provide the HCA with reasonable accommodation for her disability by not arranging a referral for her to an occupational health therapist to allow her to start in her job. The WRC said such a failure was “entirely unreasonable” as it did not constitute a disproportionate burden on the nursing home.
Ms Sulo claimed she had been fired for discriminatory reasons in breach of the Employment Equality Act 1998. She also complained that she had been discriminated against by the nursing home on grounds of her disability in securing a job, in her conditions of employment and in its failure to reasonably accommodate her.
The WRC heard that Ms Sulo began work experience at the nursing home on July 14, 2023, and was offered a role as a HCA three days later after she had provided her work permit and references at an interview. She was asked for a report from an occupational health therapist by the nursing home after she had completed a medical questionnaire.
However, Ms Sulo admitted feeling “clueless” about what to do after she was informed by University Hospital Limerick that she would need a referral to see an occupational health therapist. She subsequently informed the nursing home that she had given consent to Cork University Hospital to provide details of her medical records to the nursing home.
However, the WRC said there was no further communication from the nursing home after the complainant had asked for a referral letter to see an occupational therapist in UHL on October 25, 2023, and even after a follow-up letter from her solicitor on December 19, 2023.
WRC adjudication officer, Úna Glazier-Farmer, said it was accepted that Ms Sulo had a disability covered by employment equality legislation. Ms Glazier-Farmer said there was also no evidence that one month’s notice had been given when Ms Sulo’s employment contract was terminated.
She found there was no constructive engagement by the nursing home with Ms Sulo regarding her position between August 14, 2023, and October 25, 2023.
She observed that the HCA was left in a difficult position due to the nursing home’s inaction which meant she experienced a delay in completing her qualification because she could not complete her work experience.
The WRC said Ms Sulo was left in limbo because she had not been provided, despite numerous written requests, with details about the number of hours she had worked at Abbot Close. It concluded that Ms Sulo was treated less favourably than other staff which resulted in her constructive dismissal on grounds of her disability.
Ms Glazier-Farmer said it was “beyond belief” that the nursing home had not explored having Ms Sulo attend an occupational health therapist in Limerick when it had done so with another employee. She said there was considerable confusion about what exactly the nursing home was seeking from Ms Sulo.
In contrast, the WRC said the HCA had provided very clear evidence, which was supported by e-mails, of numerous attempts to seek support and clarity from Abbot Close.
Ms Glazier-Farmer said it was impossible to ignore the fact that a nursing home with a HR manager and administrator was unable to arrange an occupational health appointment and to provide clear instructions on what it exactly required from Ms Sulo.
The WRC ordered the nursing home to pay €10,000 compensation to the HCA for her discriminatory dismissal and a further €12,500 for its failure to provide her with reasonable accommodation and access to employment.
