17 Aug Discrimination On Grounds of Disability

In a recent Labour Court Determination (EDA 1838), the importance of reviewing all available medical evidence and potential pending medical information was highlighted when Dunnes Stores lost it’s appeal against an award that had been made against it, after they had dismissed an Assistant Manager who had been absent for over 2 years with a stress related condition.

Both employer and former employee appealed the award of €15,000 awarded by an Adjudication Officer under the Employment Equality Acts, with the Labour Court ultimately deciding to increase the award made to the sum of €30,000 in respect of the effects of the discrimination the former Assistant Manager had suffered due to the manner in which her absence and dismissal was dealt with. The employee started employment in November 2003 before being dismissed in October 2016, as she had been absent on sick leave since June 2014 and was unable to provide an indication of when she was going to be able to return to work.

The employee had an exemplary employment record before she she became unfit for work due to anxiety and stress, with the Company Doctor indicating in February 2015 that with continued care she should make a good recovery. Following a series of meetings with management, the employee’s GP indicated in January 2016 that she suffered from a severe stress related condition and they were unable to predict at that point when she would be fit to return to work. Following more meetings with management and a request that she provide a return to work date or her dismissal would need to be considered, the employee submitted a letter at a meeting on 22nd August 2016 that she had been referred to a specialist and that her return to work outcome would be subject to that specialist visit. The employee was invited to a further meeting on 12th September 2016 and again advised that a definitive return to work date was required. A copy of the referral letter to the Specialist was submitted at the meeting and after leaving the meeting for 10 minutes the Regional Manager outlined that her employment was being terminated with notice. A letter issued on 27th September to confirm this with an effective termination date of 24th October 2016.

The employer contended that they had concluded that the employee was incapable of carrying out the work that she was employed to do, in the absence of any medical advice that indicated that she would be fit to return. The employer said it was not reasonable that they would continue to hold open the position indefinitely, when after two years absence there was no medical evidence available to support a potential return to work.

The employee submitted that the employer had an obligation to fully and properly assess all medical evidence as the employee was suffering from a disability as defined within the Equality Legislation, as well as to make whatever reasonable accommodation might be necessary to facilitate her return to work. The employee further submitted that the failure to wait and review the pending medical evidence was in breach of the legislation and ultimately amounted to a discriminatory dismissal.

The Labour Court agreed with the employee and found, taken into account, all the circumstances, that in the absence of the impending specialist report, the employer was not on the date that the decision was taken to dismiss, in a position to objectively evaluate the degree to which adjustments could have been made to working arrangements, to render the employee capable of returning to work. The Court determined that the employee was discriminated against on grounds of disability, and varied the previous award from €15,000 to €30,000.