Disability Discrimination Case
Labour Court Doubles Award
In a recent appeal hearing (DUNNES STORES - AND - MARY DOYLE GUIDERA. EDA1838) the Irish Labour Court doubled an award made by the WRC adjudication officer. The case involved an employee ( Mary Doyle Guidera ) who was unfit for work from June 2014 to October 2016, the date of her dismissal. She was on sick leave due to stress and anxiety. Both sides agreed that at the date of termination of her employment and prior to that date she suffered from a disability within the meaning of the Employment Equality Acts, 1998 to 2015.
The employee was certified unfit for work in June 2014. She attended meetings with management whenever they were requested. She also attended the company’s doctor in February 2015. The doctor confirmed that she was unfit for work, but with continued care she should make a good recovery.
She attended further meetings in March 2015 and the succeeding period. In January 2016 her GP sent an update to her employer which stated that she suffered from a severe stress related illness and that it was not possible to predict with certainty, when she would be fit to return to work.
A number of meetings were held. The focus of the employer was on obtaining a return to work date. A meeting was scheduled for August 2016 at which her position would be considered and this may lead to a decision to dismiss her. She was advised to discuss the matter with her doctor and bring any medical or other information to the meeting. The employee supplied management with a letter confirming that she had been referred to a specialist and that her return to work would depend on the outcome that visit. She was advised by management that they needed a return to work date and that her employment would be terminated.
She received a further letter inviting her to a meeting in September 2016. This letter followed a similar format to the previous one in that she was requested to bring medical reports and any further information which she wished. She was advised that, at the meeting, management would be seeking a definitive return to work date in the near future.
The employee supplied a copy of the specialist referral letter and other medical letters. Management left the meeting and returned after ten minutes. She was advised that her employment was being terminated with notice, leaving the effective termination date as 24th October 2016.
At the labour court hearing the employee submitted that the employer did not discharge its responsibility to make an informed and considered decision as regards whether reasonable accommodation within the meaning of the Act would facilitate the complainant in being capable of carrying out her duties.
The court found that in the absence of the impending specialist report, the employer was not in a position to objectively evaluate the degree to which appropriate adjustments could be made to the employee’s working arrangements so as to render her capable of participating in the employment
The Court ultimately found that the employee was discriminated against on grounds of her disability contrary to the act.
An employer is not expected to hold a position open forever, for an employee who is absent on extended sick leave. Any decision to terminate employment can only be made after carefully considering all up to date information, medical advice and the possibility of making reasonable accommodation to facilitate the employee’s return to employment.
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I am absent on extended sick leave what should I do next ?
As can be seen from the above case, the whole area of extended sick leave and returning to work can be complex. Our advice is to talk to an employment law expert before making any decision which can affect your employment.
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