Complainant

Respondent

Anonymised Parties

A Production Coordinator

A Pharmaceutical Company

Representatives

Leonard Parker BL, instructed by Leahy Reidy, Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00029875-001

24/07/2019

The Complainant commenced employment with the Respondent, a pharmaceutical company, on 16 May 1994.

The Complainant went on sick leave on 22 November 2016. Following a 28-month period of sickness absence from work, the Complainant was dismissed on the grounds of incapacity, with effect from 20 March 2019.

The Complainant submitted a complaint to the Workplace Relations Commission, under Section 77 of the Employment Equality Act, 1998, on 24 July 2019.

That complaint, having been duly delegated to me by the Director General of the WRC, is the subject matter of this adjudication.

Introduction:

In her complaint to the WRC, the Complainant claimed that she had been dismissed from her employment. The Complainant further stated that she had been on sick leave for 2.5 years due to alcohol misuse and the associated mental health issues that arose therefrom.

The Complainant stated that she had a disability and that the Respondent had discriminated against her in relation to that disability.

At the oral hearing of the Complainant’s complaint, her legal representative made the following submissions:

Dismissal

It was submitted that the Complainant commenced employment with the Respondent 16 May 1994. The Complainant held various roles within the Respondent company and, at all material times, was a valued and well-regarded employee. The Complainant was dismissed from her employment with the Respondent on or about 9 November 2018, on the grounds of incapacity.

It was further submitted that, following an internal appeal hearing, the decision to dismiss the Complainant was upheld, on 28 December 2018. According to the submission, a stay was put on that decision for three months. The said three month stay expired on 20 March 2019, on which date, the decision to dismiss became operative.

Disability

It was submitted that it is well established law that conditions such as mental health problems, alcoholism or drug addiction come within the terms of the definition of disability as contained in Section 2 (1) of the Employment Equality Acts, 1998 -2015.

Discrimination:

It was submitted that the Complainant was discriminated against by the Respondent in that she was treated less favorably than another person would be treated in a comparable situation on the grounds that her disability was treated less favorably as compared to a person suffering from a different disability pursuant to Section 6 (1) and Section 6 (2) (g) of the Employment Equality Act 1998.

Specific reference was made to the fact that the Complainant had a recognised disability, being mental health issues and alcohol dependency. It was further submitted that at all material times, it was well known to the Respondent that the Complainant was suffering from this disability and same was well documented.

However, according to the Complainant’s submission, notwithstanding this knowledge, the Respondent sought to deal with this quite specific and particular problem, namely mental health issues and associated alcohol dependency, as one would deal with an ordinary occupational type injury or disability such as physical incapacity or an injury sustained in a road traffic accident or a physical condition such as a kidney infection or diabetes, all of which have been held by various tribunals of competent jurisdiction as being within the scope of the definition of disability pursuant to the Act.

According to the submission on behalf of the Complainant, the difficulty rose in that when dealing with mental health issues and allied alcohol dependency issues, the constant engagement, reviewing, meetings, correspondence and the stresses associated with same, often have the undesirable but foreseeable consequence of actually exacerbating the Complainant's condition and therefore driving back her recovery timeline.

It was specifically submitted, on behalf of the Complainant, that the type of intervention undertaken by the Respondent, in the knowledge that the plaintiff was suffering from this condition/disability, was inappropriate, not fit for purpose, and while fit for the purpose of dealing with an “ordinary” physical disability was not fit for dealing with the much more difficult and nuanced disability of a mental health and alcohol dependency nature.

In such circumstances, it was submitted that by failing to adapt its internal procedures in relation to the specific problems being encountered by the Complainant, or by not having internal procedures which had some inbuilt flexibility, the effect was that the Complainant was treated less favorably than a comparable person suffering from a purely physical disability. It was further contended that the Respondents internal procedure in relation to how to deal with occupational injury or physical disability was not reasonably and/or appropriately adapted or nuanced, or “elastic” Enough in itself, to take account of the particular facts and circumstances of this case. It was further submitted that the way the procedure was implemented was essentially discriminatory because it continued to rigorously apply the normal procedure associated with physical disability or occupational injury (i.e. ongoing and continuous intervention and review) which, in actual fact, had the detrimental effect of inhibiting the Complainant's recovery and thereby placed her in a position which was less favorable than a person who was suffering from a “mere” physical disability.

According to the submission on behalf of the Complainant, the regular and ongoing correspondence, including correspondence in relation to the Complainant’s prospective dismissal, was actually impeding her recovery and was wholly unhelpful. This was pointed out to the Respondent by the solicitor retained by the Complainant, on 9 May 2018. It was further submitted that, notwithstanding this, the Respondent simply continued to implement its procedure without regard or adaptation. According to the submission on behalf of the Complainant, no less than nine further interventions took place in the period of six months from May 2018 up to the letter of dismissal, dated 2 November 2018, as well as ongoing and continuous correspondence.

Failure to take appropriate measures:

It was submitted that, notwithstanding the various and ongoing multiple assessments carried out by the Occupational Health specialists engaged by the Respondent, at all material times the Respondent failed to take any or any reasonable and/or appropriate and/or “effective and practical measures” (as per sections 16 (3) and 16 (4) f the Employment Equality Act 1998-2015) to deal with the Complainant's disability and to enable her to return to the workplace.

It was specifically submitted that the Respondent had the benefit of expert Occupational Health Assessors who saw the Complainant on no less than 10 occasions but yet those persons and/or the Respondent failed to come up with any workable solution to the problem. In particular it was submitted that the Respondent and/or their expert Occupational Health Assessors, failed to appreciate that the constant interventions were, in actual fact, exacerbating the Complainant’s difficulties, adding to her stress levels which, in turn, made it more likely that she would relapse into alcohol abuse/dependency and not return to work.

It was further submitted that the fact that this was occurring to the Complainant was highlighted, by way of letter dated 9 May 2018, from her solicitor to the Respondent’s HR Manager but, notwithstanding same, a further review took place two days later, on 11 May 2018 and yet another review meeting on 16 May 2018 and those meetings, assessments and ongoing correspondence continued apace and were relentless.

According to the submissions on behalf of the Complainant, regular reviews of an employee on sick leave whether suffering from a disability or other occupational injury, which has caused a long term absence, with a view to seeking to have the employee return to work, is of course wholly commendable and is now a procedure of such long standing that it can be deemed to be part of the implied terms and conditions of the contract of employment between an employer and an employee which, in the main, benefits both employee and employer with the aim of having the employee return to work.

However, it was submitted on behalf of the Complainant that, in this particular case, the constant reviewing of the case served no purpose and brokered no solution (the Complainant never returning to work) other than to demonstrate and show that the employer would be deemed to be behaving appropriately. That the constant reviewing continued after the solicitor for the Complainant highlighted, on 9 May 2018, the detrimental effects the constant reviewing was having on his client, was submitted as an indication that the Respondent simply continued with their reviews and correspondence in order to ensure that they were seen to be doing the right thing (particularly as the solicitor had been instructed by the Complainant) while neglecting to attempt a more nuanced and creative approach in order to solve the problem.

It was further submitted that the duty to reasonably accommodate, the duty to take appropriate measures and the duty to come up with effective and practical measures is a duty which rests on the employer and is mandatory on the employer. consequently, it was submitted that the Respondent in this case singularly failed to do so and consequently the Respondent had failed to comply with the provisions of Sections 16 (3) and 16 (4) of the Act.

Case Law:

In support of the submissions made on behalf of the Complainant, her representative cited the WRC case of Industrial Supervisor v Incarceration and Reformatory Service [ADJ-00019938].

Post Hearing Submission:

Following the oral hearing, the representative for the Complainant submitted the following clarification and submission:

Discrimination simpliciter:

It was submitted that the Complainant was discriminated against in relation to her disability, she having a psychological/psychiatric disability, in comparison to other employees and coworkers, who were suffering from a purely physical illness or disability as follows:

a)      The Complainant was treated less favorably than other employees and co-workers suffering from a purely physical illness or disability.

b)     The Complainant was dismissed after approximately 2 years and four months of suffering from the psychological/psychiatric disability, whereas other co-workers, who were suffering from ongoing physical disability and/or illness were treated in a much more benign manner by the Respondent and kept on as employees for significantly longer periods than two years. It was submitted that those other employees were essentially treated in a more benevolent fashion, were allowed more leeway and more time to come back to work in comparison to the Complainant. Therefore, it was submitted that the treatment of the Complainant was discriminatory in that she was treated in a less favorable manner than her comparators.

The Complainant’s representative submitted that evidence of twelve comparators, being co-workers of the Complainant, employees and former employees of the Respondent, was provided by the Complainant.

It was submitted on behalf of the Complainant that she, suffering from a psychiatric/psychological injury, with associated alcohol dependency, was treated less favorably than other coworkers suffering from physical injuries or illness on the basis that there was systemic discrimination in their review/ intervention system as follows:

a)      The Complainant had a recognised psychological/psychiatric complaint, being anxiety and depression with accompanying alcohol dependency.

b)     The above diagnosis was well known to the Respondent and well documented.

c)      The Respondent sought to deal with this most particular problem in the way that one would deal with an ordinary occupational type injury or disability such as physical incapacity or injury.

d)     The Respondent's method of dealing with the situation involves constant engagement, reviewing, meetings, examinations by various health physicians, Occupational Health professionals, updates and reports.

It was submitted on behalf of the Complainant that, while this type of review/intervention might be considered appropriate for a physical injury or illness, it's rigorous and constant application and the ongoing insistence that the Complainant set a date for her perspective return to work, caused the Complainant further and more distress and anxiety and, in actual fact, had a detrimental effect and inhibited her recovery.

Therefore, it was submitted that, while in normal circumstances involving a physical injury or illness, this type of rigorous review/intervention might be deemed to be appropriate to get a person back to work, in the circumstances which the Complainant found herself in, it was inappropriate, was not fit for purpose and was not elastic enough to take account of the fact that the Complainant was suffering from a psychiatric/psychological injury. It was contended that this failure to take into account her specific needs was discriminatory in comparison to how this regime would have suited a person suffering from a physical disability.

In summary, it was submitted on behalf of the Complainant, that the system of review was discriminatory in that it did not take into account the type of injury which she sustained, such that she was put in a less favorable position than a person suffering from a physical injury, because the constant reviewing, rather than helping the Complainant, actually caused her more distress, therefore, pushing out her recovery timeline.

Putting in Place Appropriate Measures to Reasonably Accommodate the Complainant’s Disability:

In support of the submissions already made in relation to the matter of reasonable accommodation, the Complainant's representative further referenced the Supreme Court case of Nano Nagle v Daly [2019 IESC] and in particular the comments of Mr. Justice MacMenamin in relation to section 16 (3) of the 1998 Act, with specific regard to the mandatory duty it places on the employer.

Introduction:

The Respondent strenuously denied that the Complainant was discriminated against on the grounds of disability and that they failed to reasonably accommodate her disability within the workplace, as required under Section 16 of the Employment Equality Act 1998-2015.

Submission on behalf of the Respondent contend that the Complainant was afforded fair procedures and attempts to accommodate her over and above what is required by the Acts and defined as reasonable by case law.

It was further submitted that, after 28 months of persistent absence and no foreseeable return to work date, in any capacity, being proffered either by the Complainant or the Occupational Health physicians, the Respondent fairly and reasonably dismissed the Complainant. It was further submitted that the Respondent also disputes that the Complainant was treated less favorably than any other individual either without or with a different disability as alleged.

Background to the Complaint:

It was submitted that the Complainant commenced employment with the Respondent on 16 May 1994 and, at the time of her dismissal, on 20 March 2019, her job title was Production Coordinator. It was further submitted on behalf of the Respondent that, as a result to various illnesses both mental and physical, the Complainant was absent from the workplace from 22 November 2016, a period of 28 months of unbroken absence.

It was further submitted that, in line with best practice and the Respondent's own procedures, the claimant was referred to their Occupational Health physician on numerous occasions over the course of her prolonged absence. The Respondent rejects the contention that this exasperated the Complainant's illness and all engagements were pursuant to the advice given in the medical reports received.

In support of their submission in this regard, the Respondent provided a chronology detailing all interactions with the Complainant during the 28-month period of her absence. The Respondent submits that the chronology illustrates the exhaustive efforts they went to in order to facilitate the Complainant's return to work and, while she had sought to cast this in a negative light, these engagements were as support mechanism and were done under the guidance and advice of qualified clinicians, who at no time recommended that the Respondent should cease engagement with the Complainant. It was further submitted by the Respondent that the Complainant declined any support from the Respondent and declined all alternatives offered to her.

According to the Respondent submission, having made best efforts to facilitate the Complainant's return to work, when after a 28-month absence, no foreseeable return to work date was identified, the Respondent was no longer in a position to hold the Complainant’s role open. The Respondent stated that the Complainant's role was backfilled internally on a temporary basis and this had another knock on effect for a number of other employees, one in particular who stepped into the Complainant’s role on a temporary basis but was then in a position where she had to choose between remaining in a role that was uncertain and forfeiting her permanent position or returning to her permanent position. Consequently, the Respondents admitted that they needed clarity and filling roles on an indefinite temporary basis was operationally no longer an option.

According to the Respondent’s submission, the Complainant was dismissed, effective 9 November 2018. However, it was further submitted that, following an internal appeal a three-month stay was put on the date of dismissal. This expired on 20 March 2019, by which time there was no change in the prognosis or position of the Complainant in regard to considering alternatives and, as a result, the dismissal became effective on that date.

The Law:

In setting out their position, in response to the Complainant’s complaint, the Respondent made submission under the following headings:

1)     Disability

The Respondent confirmed their acceptance that the Complainant's illness comes within the definition of a disability as contained in Section 2 (1) of the Employment Equality Acts.

2)     Reasonable Accommodation

With regard to reasonable accommodation, the Respondent referred to Section 16 (1) and 16 (3) of the Employment Equality Act.

The Respondent also referenced the Labour Court case of A Health and Fitness Club v A Worker, which it was submitted, was endorsed by the Supreme Court case of Nano Nagle School v Marie Daly [2019 IESC].

With reference to the Labor Court case, the Respondent referred to the approaches the Court considered should be adopted in cases of disability, as follows:

1)     The employer should establish “the factual position considering the employees capability, including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer.”

2)     The employer should “consider what, if any, special treatment our facilities may be available by which the employee can become fully capable. The cost of such special treatment and facilities must also be considered.”

3)     “such an inquiry could only be regarded as adequate if the employee is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

With regard to the within case, it was submitted that the Respondent had regard to a significant volume of medical evidence and was involved consistently, for the entire duration of the Complainant's absence. The Respondent further submitted that the Complainant was repeatedly asked for her input at the welfare meetings and options such as - (1) a phased return to work, (2) flexible working hours and (3) time off to attend AA meetings - were put to the Complainant on a number of occasions. It was further submitted that she was also repeatedly asked if she wished to explore other roles or other opportunities that would be more suitable to her.

In addition, the Respondent submitted that, in June 2018, they proactively reached out to the Complainant and presented a part time role, which she had originally expressed an interest in, during earlier days of the engagement. It was submitted by the Respondent that the Complainant subsequently turned down the part time opportunity due to ongoing treatment and child care needs.

According to the Respondent’s submission, the medical reports never identified a return to work date or suitable accommodations that the Respondent should consider and that the Complainant herself never suggested any potential options that she felt might facilitate her return to work, nor did she engage with the suggestions made by the Respondent. The Respondent further submitted that the Complainant repeatedly stated that she had no goal to return to work.

Consequently, the Respondent submitted that it is necessary to examine, at the point of the decision to dismiss or not being made, whether or not the employee is capable of carrying out their role into the future. It was submitted that, based on the medical evidence in this case, that unfortunately was not the case.

It was further submitted that neither the Respondent nor the Complainant is medically qualified to make such a decision. According to their submission, the decision to dismiss the Complainant was difficult. However, based on the Complainant's illness the Occupational Health professionals were unable to provide a return to work date and were of the opinion that capability for work would not be achieved in the foreseeable future.

Consequently, it was submitted by the Respondent that, taking all the factors into account, they were left with no alternative but to terminate the Complainants employment on the grounds of incapability. In this regard, the Respondent submitted, it was important to note that, eight months had passed from the time that the Occupational Health professionals first made the determination that the Complainant had no foreseeable return to work date until the date of actual termination. According to the Respondent, this further demonstrates the lengths they went to facilitate a return to work.

In their submission, the Respondent then referred to the Complainant’s assertion that her illness, namely mental health issues and associated alcohol dependency, should have been treated differently to physical illness/injury and that the Respondent should have somehow, adapted its internal procedures ‘in relation to the specific problems being encountered by the Complainant.”

In response, the Respondent submitted that there is no basis in law for such a position and this is not for the Complainant, her representative or the Respondent to make clinical decisions of this nature. The Respondent further submitted that the complicated and delicate nature of the Complainant's illness was precisely the reason they relied heavily on Occupational Health advice and were, at all times guided by their expertise.

The Respondent further submitted that they went above and beyond to seek additional medical opinion on the matter and sought the advice of a specialist consultant and paid for same to get an alternative review of the Complainants case. According to the Respondent, the consultant report substantiated that the Complainant was unfit to work for the foreseeable future.

According to the Respondent’s submission, during welfare meetings with the Complainant, they offered the services of the Employee Assistance Program and consistently enquired of the Complainant whether she required any support to seek any opportunity to identify a support mechanism and a path to return to work. The Respondent further submitted that the Complainant reiterated on all occasions that no support was required.

The Respondent submit that the Complainant's dismissal was not taken lightly. They endeavored to facilitate the Complainant in returning to work and had they received medical confirmation that she was fit to do so, would have assisted the Complainant to return to work if possible. The Respondent submitted that, unfortunately, this was not the case.

With regard to the dismissal procedure, the Respondent submitted that they conducted a fair process and were open minded in their approach. It was further submitted that in relation to the procedures used to implement this dismissal, the Complainant was offered all the benefits of fair procedure, in line with the Respondent's established policy and the universal principle of natural justice. Specifically, the Respondent submitted that all evidence, in its entirety, was considered, including the Complainant’s representations, before any decision was made or any action taken. It was further submitted that the Complainant was afforded the right to appeal, which she chose to exercise which resulted in a three-month stay being put on her dismissal.

According to the Respondent’s submission, by way of letter dated 16 Aug 2019, the Complainant was again offered an alternative role that of Advanced Technician - Product Plan and Control in the formulation department. This role was offered after the Complainant and lodged her claim to the WR. However, the Respondent submitted that no response was received from the Complainant in relation to this offer.

Finally, the Respondent submitted that every conceivable effort was made to accommodate the Complainant’s return to work, that they, in fact, went over and above what might be considered reasonable and that their duties under Section 16 of the Acts were fully discharged.

3)     Discrimination

According to the Respondent’s submission, it is a well-established practice of the Equality Tribunal, the WRC and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he/she was treated less favorably than any other person is, has been, or would be treated, on the basis of the discriminatory ground cited.

In support of their submissions in this regard, the Respondent cited the following cases: (1) Southern Health Board v Mitchell [2001 ELR 201], (2) Arturs Valpeters v Melbury Developments Ltd and (3) Margetts v Graham Anthony & Company Limited [EDA 038]

Based on the above, the Respondent submitted that the Complainant has not adduced facts from which it may be inferred that an act of discrimination has occurred.

With regard to the comparators cited by the Complainant, in support of her claim of discrimination, the Respondent provided detailed responses in relation to all eleven comparators identified. According to the Respondent’s submission, it is unclear what the nature of the less favorable treatment was. The Respondent submitted that some of the individuals cited were either similarly dismissed on capability grounds, after prolonged absences or where accommodated, where this was possible medically and the employees engaged with the Respondent to bring that about. The Respondent further submitted that the remainder of the comparators left employment in entirely different circumstances, which have no bearing on the case being made by the Complainant.

Conclusion:

In summary, the Respondent submitted that they made every conceivable effort to accommodate the Complainant's return to the workplace and offered several options in this regard. However, the Respondent submitted that the medical reports never identified any return to work dates or accommodations that might have assisted the Complainant's return to work nor did the Complainant herself identify any potential measure that might assist her in her return to the workplace.

Consequently, after 28 months persistent absence, with no foreseeable return to work date on the horizon, the Respondent submits that they fairly dismissed the Complainant for incapability.

In conclusion, the Respondent submits that the Complainant was not discriminated against on the grounds of disability and that they fully complied with their duties under Section 16 of the Acts to reasonably accommodate the Complainant. On that basis, the Respondent requested a favorable adjudication, which would uphold their position that the Complainant’s complaint is not well founded.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. I have carefully considered and evaluated all of the evidence and submissions adduced in this regard in reaching my determinations as set out below.

In support of her complaint, the Complainant, in the within case, is inferring that she was discriminated against by reason of her disability and by way of (a) failure by the Respondent to provide reasonable accommodation for her disability and (b) by dismissing her for the said discriminatory reason.

Section 2 (1) of the Employment Equality Acts, 1998 – 2015 defines “disability” as follows:

“Disability means –

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

As can be seen from the above, the Acts set out the broad nature of conditions or impairments which could give rise to disability for the purposes of the Acts. 

In the within case, the Complainant contends that her disability related to mental health issues and associated alcohol dependency.

Based on the evidence presented by the Complainant in the within case, it is reasonable to conclude that the disability being referred to by the Complainant relates to the definition as set out at Section 2 (1)(e) of the Act. It is also noted that the Respondent accepts that the Complainant’s illnesses come within the definition of disability as set out in the Acts.

Consequently, taking all of the above into consideration, I find that the Complainant has established that she suffers from a disability which is covered by the Employment Equality Acts and which can, therefore, be used for the purposes of making a complaint of discrimination. 

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he/she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 A (1) of the Employment Equality Acts 1998 to 2008.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

The complaint is this case, in relation to the alleged discrimination, is based on the Complainant’s contention that the Respondent failed to reasonable accommodation and failed to put in place effective and practical measures which would have facilitated her return to work.

In addition, the Complainant is contending that, by utilising similar procedures in her case, to those applied in situations where employees suffered from physical incapacity or “ordinary” occupational type injury/disability were being facilitated back to work following illness, the Respondent was treating her less favorably than comparators who had different disabilities and was, therefore, in contravention of Section 6 (2) of the Acts.

The Complainant's position in this regard is based on her contention that the requirement to engage with the Respondent and their nominated Occupational Health Physicians, with the view to assisting her make a successful return to work, was, in effect, prolonging that return. In essence, at its core, the Complainant's position is that she should have been left to manage her return to work process with little or no engagement from her employer and that when she was fit and ready to return to work she would advise the Respondent accordingly.

Having carefully considered the Complainant’s position, in this regard, I am satisfied that it would be both unreasonable and unworkable to leave an employee on open ended sick leave, in the absence of any appropriate medical assessment/assistance and/or engagement with the employer with regard to prospective return to work dates.

Firstly, I am of the view that this approach would be ill advisable from the perspective of the employee themselves, who in most cases, I would imagine gains benefit from the ongoing engagement, particularly with regard to assessment/advice.

Secondly, I am of the view that such an approach would be unreasonable from the perspective of the employer, who, in the continued absence of an employee, must continue to manage their business and, in particular, in relation to staff allocation/work distribution, in a context where they are required to keep the absent employee’s position open until they return to work.

Finally, in this regard, I am of the view that it would be unreasonable on other employees, who may be required to take on different roles, in a temporary capacity, pending the return of the absent employee. In relation to the within case, the Respondent provided significant evidence in support of their position that the Complainant's continued absence, for such a prolonged period, was placing strains on both the business process and the positions of other employees.

Consequently, I find that the Complainant’s contention that the Respondent should have adopted a different approach in their efforts to manage her back to work is not well founded.

The Respondent provided significant evidence in relation to the various interactions and interventions that took place with the Complainant during the 28-month period of her absence on sick leave from work. Having carefully reviewed this evidence, I am satisfied that the Respondent’s approach was at all times reasonable and accommodating. The Complainant was provided with numerous options and alternatives with regard to her return to work, none of which were deemed acceptable by her.

Section 16 (3) of the Employment Equality Act sets out the obligation on employers with regard to reasonable accommodation as follows:

“(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.

(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.”

This provision was further emphasised and interpreted by the Supreme Court in the case of Nano Nagle School v Daly [2019] IESC 63, where, at paragraph 84, it was stated:

 “Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

It is clear from the above that the mandatory, primary duty on the employer under Section 16 (3)(b) is that they take appropriate measures, where needed in a particular case, to enable a person, with a disability, to participate and advance in employment unless these measures would impose a disproportionate cost burden.

It is also clear from the Nano Nagle and many other cases, both before and since that case, that the main focus in relation to reasonable accommodation is on providing accommodations within the workplace, which will accommodate the return to work and will allow the fullest possible participation in the workplace of the returning employee, who has a disability.

The reality in the within case is that the Complainant never returned to work and the Respondent was never provided with a projected date of return, at any point during a 28-month absence. Consequently, the Respondent was confined, in terms of affording reasonable accommodation, to considering options that would, initially, facilitate a return.

Having carefully considered the evidence in relation to the various offers of alternative positions, altered work arrangements etc., made to the Complainant in an effort to facilitate a return to work, I am satisfied that the Respondent has met the obligation placed on them by Section 16 (3) of the Acts.

Consequently, faced with a situation where they were dealing with a sickness absence, which had extended for more than two years and where there was no indication of a possible return to work date, the Respondent took the decision to embark on a disciplinary process based on the Complainant's incapacity to return to work and carry out her duties.

Section 16 (1) (b) of the Acts states as follows:

(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

In the context of the above provision, I find that the Respondent’s decision to address the Complainant's continued absence on the basis of capacity, to have been reasonable and appropriate in all the circumstances.

Based on the evidence submitted, I am also satisfied that, in conducting the disciplinary procedures, which led to the Complainant's eventual dismissal, she was afforded fair and reasonable process at all stages. This view is supported by the fact that, even when the decision to dismiss had been taken, the Respondent afforded the Complainant an extension of three months to allow her to reach a position where she could return to work. However, as the Complainant was not in a position to indicate a return to work date within that additional period, the decision to dismiss was implemented.

Consequently, taking all of the above into consideration and having carefully reviewed all of the evidence adduced in this regard, I find that the Complainant has failed to establish a prima facie case of discrimination, such that the burden would have shifted to the Respondent to prove the contrary, as set out in Section 85 A (1) of the Employment Equality Acts.

Consequently, based on the above I find that the Complainant’s contention that the Respondent failed to provide reasonable accommodation with regard to her return to work and that she was dismissed for discriminatory reasons is not well founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim of discrimination on the grounds of disability is not well founded and is, therefore, rejected.

In issuing this decision, I have exercised my discretion to anonymise the identities of the parties involved.

Employment Equality Act

Reasonable Accommodation

Discriminatory Dismissal