Complainant

Respondent

Parties

Marie  O'Reilly

Chadwicks Group

Representatives

Arthur Cush BL, instructed by Kenny Sullivan Solicitors

Peter Gilfedder IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055402-001

06/03/2023

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

CA-00055402-002

06/03/2023

While the complainant lodged complaints of dismissal under both the Unfair Dismissals Act and the Employment Equality Acts, the complainant confirmed at the commencement of the hearing that her complaint of dismissal is being brought under the employment equality legislation.

The complainant states that she was first employed with the respondent in 1979 at the age of 17. She states that she has been employed with the company from 1979 to 1993 and then from 1999 to 2022. The complainant outlines that she has 37 years of service with the company. She states that she very much enjoyed working with the company and was dedicated to her work. The complainant states that she was initially employed as a cashier but over time she was given increasing responsibility for lodgements, balancing the till and administration. The complainant states that in 2018, she was promoted to a credit control assistant. She states that the credit control position was an administrative desk based position in which she would contact customers with outstanding invoices by phone to attempt to obtain payment.

The complainant submits that on 1 February 2021, she attended hospital for a routine back surgery. The complainant outlines that she was due to return to work six to eight weeks post surgery. However when she awoke from the surgery, her right leg was paralysed and she had suffered “dropped foot” due to unexpected complications with the surgery. The complainant states that this was an extremely traumatic event for her. She outlines that her mobility was seriously compromised and she was initially able to move only very slowly and with the use of a zimmer frame and crutches.

The complainant asserts that she was signed off work due to her condition. She states that this was her first time on extended sick leave from work and she was determined to regain her mobility and independence. The complainant states that she followed the advice of her doctors and engaged in private physiotherapy, swimming and gym exercises. She states that she had her car adapted and took specialist lessons from the Airport School of Motoring on the use of the new adapted car. The complainant states that in February 2022, she drove to the respondent premises to hand in her sick certificate and was informed by MC that her job or other similar position would be kept for her so long as she returned to work in the coming months as another employee was retiring in July 2022.

Medical assessment and unfitness for work

The complainant states that at the respondent’s request, she attended an in-person appointment with Dr M, the company doctor on 24 March 2022. The complainant states that at this juncture, she was moving with the use of two crutches. The complainant states that when she arrived at the doctor’s office, it was up a steep set of stairs which she struggled to climb. The complainant states that Dr M’s opinion was that she was not fit for work at that stage and he prepared a report to that effect.

It was submitted that Dr M’s report notes the complainant’s attempts to improve her situation. It recommends; “In my opinion, it will be good for her to get back to work in a part-time capacity but she is not yet ready to commence this. It is too early to state whether or not she will be able to get back to working the previous hours that she did. I expect she will need to be accommodated with reduced hours 4-6 months after she returns.” The report recommended a follow-up in 6-8 weeks time.

The complainant states that on 15 April 2022, she attended remotely at the first disability hearing organised by the respondent. It was submitted that the purpose of this meeting was to discuss the complainant’s prognosis and the scope for her return to work. The minutes of this meeting record that the complainant is “trying everything” to aid her recovery and that radio active box therapy for her spine is planned for the coming weeks. The minutes record that she is eager to return to work but that her prognosis remains unknown at that time.

The complainant states that on 5 May 2022 and 22 June 2022, she had telephone calls with Dr M on the issue of her recovery. At this time, the complainant states that she was attending her own physiotherapy, rehabilitation work in the gym and swimming pool to try to speed up her recovery. The complainant states that on 1 July 2022, she received a letter from the respondent asking her to attend a second capability meeting.  It was submitted that this letter enclosed the more recent report of Dr M dated 22 June 2022:

This lady is working hard at trying to regain her mobility and independence, she is quite disappointed with her slow rate of progress but recognises that it is going to take time. Her morning rehab exercises are extremely important and she needs to continue to do these.

Unfortunately she remains unfit for office based duties, I had previously discussed the possibility of her resuming doing office based work duties, however I believe that such a sedentary role would not be good for her. The role she did in which she was up and down and moving around would be ideal in many ways, but she is not mobile enough or fit enough to resume these duties.    

The complainant states that she takes serious issue with the report of Dr M in that (a) the conclusion is one which has profound consequences for the complainant and yet it is made on the basis of a telephone conversation with the complainant. It was submitted that this is particularly stark where Dr M originally believed she could return to work but then apparently shifted away from recommending this (b) the conclusion appears to be based on a view on what is “best for her” rather than advising on what she is or is not capable of. The report did not conclude that she was incapable of performing a sedentary role only that it would not be good for her. (c) The report does not consider at all what work she would be capable of performing; it is framed entirely in the negative.

The complainant states that she did attend at the capability meeting held on 11 July 2022 and answered questions put to her by HR representatives, openly and honestly.

Termination on grounds of capacity      

The complainant states that by way of letter dated 15 July 2022, the respondent decided to terminate the complainant’s employment. It was submitted that it is apparent from this letter that the respondent’s decision was based primarily on the report of Dr M. The company mischaracterised Dr M’s findings as being that she is not capable of performing a sedentary role when no such finding was made.

It was submitted that the respondent placed the burden on the complainant of identifying alternative roles for herself, the letter notes the complainant’s response that she would do any role if it meant that she could get back to work. The complainant states that this suggestion was not engaged with and she was incorrectly treated as incapable of performing any role. It was submitted that the letter dismissing the complainant records:

“What alternative roles have you considered that would allow a return to work ? 

Your response to this was that you would do any role so long as you could get back to work. However it has been established at this current time you remain unfit to perform work duties as confirmed by the Company doctor.

The complainant states that on 19 July, she appealed this decision  and an appeal hearing took place on 22 August 2022. In the context of her appeal, an email was sent by her previous manager MC to LB, HR officer dealing with the appeal. This email is dated 24 August 2022 and records the conversation between MC and the complainant in February 2022:

“again about the possibility of her returning to work but she had no timeframe, she did suggest that she may in the future be able to come back on a part-time basis. I explained to Marie that we would have to advertise the role of credit controller as the branch cannot operate without a full-time credit controller to which she was in agreement. I did ensure that there will be a position for her on her return as we still had a vacant receptionist role and failing that P {my emphasis} will be retiring from her administration role in July.”    

 The complainant asserts that despite this assurance, these options were not explored as part of the decision to terminate the complainant on grounds of capacity. It was submitted that it is particularly striking that the above mentioned administrator role became vacant in the same month as the complainant was dismissed and yet her capacity for this role was never given consideration.

The complainant states that she received a letter dated 7 September 2022 which upheld the termination of her employment. It was submitted that this decision contains a number of factual inaccuracies. The letter states “In your most recent occupational health assessment, the physician further stated that you were unfit for a sedentary role and unfit for a role in which you are required to be mobile.” It was submitted that this point is repeated four times in the letter and it is incorrect. The complainant asserts that Dr M never found that she was unfit for a sedentary role.

Complainant’s competence on reasonable accommodation

It was submitted that the complainant was not legally represented during the capacity process and therefore was not aware of the need to present medical evidence. The complainant has now obtained a report from Dr N, Consultant Neurosurgeon. It was submitted that this is the doctor that treated her since 2016 and who performed the operation which led to the present disability.  Dr N treated the complainant post operation and referred her to his colleague for the purpose of pain management. The complainant states that although his report is dated 21 October 2023, he can provide his expert opinion on the whole of her recovery process and is in a better position to give an informed opinion than Dr M.

The complainant outlines that Dr N describes her progress up to the point of termination as follows;

“We had suggested that she attended for physiotherapy, she did attend for physiotherapy, she also attended Ms S {my emphasis} in Medfit. Initially of course she had struggled with a lot of pain, she had also struggled with a lot of mobility difficulties in view of the fact that she also had a foot weakness.

Essentially she complained of ongoing lower back pain as well. Postoperatively, I had referred her on to my colleague, Dr H {my emphasis} for the purpose of pain management.

Her progress was that she was initially walking with two crutches, she has now graduated onto one crutch, she has a car adapted and she is able to drive, she is able to go shopping and essentially her mobility has improved in the sense that she is able to do a lot of things more independently and has been very determined to achieve that.”  

It was submitted that Dr N’s opinion is that the complainant could have continued in her employment if she had been reasonably accommodated.

“From the point of view of her employment being ceased, I think she certainly could have been accommodated in the role of accounts assistant in many ways and perhaps even a hybrid role or working from home and the fact she is able to sit and perform most of her duties and she is also able to independently mobilise.”

The complainant states that Dr N sees no reason why she could not now return to this position. Dr N states “I do feel that she is fit to work in the same role, perhaps with a different job description but her current situation remains that she is independently mobile with one stick and is able to drive and I do not see any reason why she cannot be working in the capacity of accounts assistant.” 

Failure of Respondent to properly assess the Complainant’s competence

The complainant submits that the respondent engaged in a discriminatory dismissal in that it failed in its duty to properly assess the complainant’s competence. It was submitted that section 16 (3) of the Employment Equality Act provides that a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if, the person would be so fully competent and capable on reasonable accommodation (in the subsection referred to as “appropriate measures”) being provided by the person’s employer.

It was submitted that in the case of Nano Nagle School v Daly 2019 IESC 63, the Supreme Court confirmed this to be a mandatory and primary duty on an employer:

“section 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.”   

It was submitted that in the present case, the respondent completely failed to consider whether the complainant was competent for a sedentary role, instead accepting the view of Dr M that a sedentary role would not be good for her. In that regard, the respondent failed in its duty to assess competence correctly. It was submitted that as was held in Nano Nagle at paragraph 90 of the judgment; “full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures” and as stated later in the judgement; “the words of section 16(3) provide that a person will be seen as fully competent if they would be fully competent on reasonable accommodation.”  

It was submitted that it is well established that an employer is under a specific obligation to carry out a proper assessment. The complainant cites the decision of the Labour Court in the case of A Government Department v A Worker ADE 0516 which set out the duty of the employer as follows; “The duty placed on an employer by section 16(3) includes by implication, a requirement to make a proper assessment of the situation before decisions are taken which may be of detriment to the disabled employee… This necessarily involves discussing the matter with the employee or their medical advisors.” 

It was submitted that in the within case, a proper assessment would have involved:

(a)    Consideration of a sedentary role or a hybrid role as a modification of her existing role, to the extent that this was required at all as the role was largely sedentary.

(b)    Assessing the complainant for suitability either of the receptionist role or the administration role referred to by her manager in the email of 24 August 2022.

(c)     Meeting the complainant in person before making such an important decision.

The complainant argues that conducting this assessment and then applying these measures would come as little to no cost and with minimal if any operational disruption to the respondent and as such cannot constitute a “disproportionate burden” within the meaning of section 16(3)(b) of the Act.

The complainant submits that having regard to the foregoing, she has established a prima facie case of discrimination and that the burden therefore shifts to the respondent to rebut those allegations.

Time Limits

The complainant’s legal representative submitted that the outcome of the appeal was issued to the complainant by letter of the respondent dated 7 September 2022. It was submitted that in those circumstances the complaint is within the 6 month period permitted under section 77(5)(a) of the Acts and the Adjudication Officer has jurisdiction to investigate the complaint.

The respondent asserts that the complainant is alleging that she was unfairly dismissed and discriminatorily dismissed. The respondent states that it strongly disputes these claims and maintains that it terminated the complainant’s employment on the grounds of capability in accordance with section 6(4)(a) of the Unfair Dismissals Act 1977. The respondent submits that at the time of termination on the 12 August 2022, the complainant had been absent from the company since the 1 February 2021, a period of 1 year, 6 months and was not medically fit for work for the foreseeable future. The respondent refutes these claims in their entirety and it puts forward the following preliminary arguments in respect of these claims.

First Preliminary Issue – Time Limits

The respondent notes on the complainant’s WRC complaint form that she cites the 7 September 2022 as the date of dismissal. The respondent states that the complainant submitted her form to the WRC on 6 March 2023. Therefore, the cognisable period is the 7 September 2022 to 6 March 2023. The respondent disputes the date of dismissal and argues that the complainant’s contract of employment was terminated effective the 12 August 2022. The respondent argues that the claim is made outside of the six months timeframe allowed for under the Workplace Relations Act 2015 and the Employment Equality Act 1998. 

The respondent submits that section 41 of the Workplace Relations Act 2015 provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation. If a complaint is not within the time limit, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the complainant has demonstrated reasonable cause for the delay.  The respondent asserts that the complainant had sufficient time to lodge her claim and has not demonstrated reasonable cause or provided reasons for the delay in bringing proceedings to the WRC.

The respondent relies on the view held by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) Limited v Tom Carroll (2003) DWT0338 to support its argument, 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  

Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time”.   

The respondent submits that the Court’s explanation in Cementation Skanska, drew heavily from the High Court case of O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, wherein Costello J held that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. Costello J stated:  

“The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”. 

The respondent notes the decision of the Employment Appeals Tribunal in Byrne v Quigley (UD 762/94) in which the claimant, in arguing for an extension of the time limit in order to pursue his claim, argued that he was not aware of his rights/the provisions of the legislation. The Tribunal found that ignorance of the law was not an excuse, and on this basis the respondent argues that such an argument on the part of the claimant would fail to “afford a justifiable excuse for the delay.” The respondent submits that in the case of Tyco Healthcare Ireland Ltd v A Worker (EET025/2002), the delay in submitting the claim was due to the failure of the complainant's legal advisors to file her proceedings on time. The Labour Court's view is that this did not constitute acceptable circumstances for an extension to the initial six-month timeframe. 

The respondent also cites the decision in Beasley v National Grid [2008] EWCA Civ 742 (UK Court of Appeal) where the Claimant was 88 seconds out of time in submitting his appeal to the Court. Tuckey LJ reasoned that time bars “…exist for the very good policy reason, that parties should know where they stand within a limited time of any dispute arising.”  Accordingly, the respondent requests that the Adjudication Officer find that they do not have jurisdiction to hear the case.

Second Preliminary Issue – Dual Claims

The respondent states that the complainant has taken a case under both the Employment Equality Acts and the Unfair Dismissals Acts. The respondent refers to the Workplace Relations Act 2015 which amends section 101 of the Employment Equality Acts as follows with respect to dual claims made under both Unfair Dismissals and Employment Equality legislation;

4A) (a) Where an employee refers— (i) a complaint under section 77, and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the said complaint shall be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

SI126/2016 specifies the “relevant date” as 42 days after notification to the complainant that Section 101 (4A) applies.

The respondent asserts that from the submission set out on behalf of the complainant and in her WRC complaint form, it is clear that her allegations with regards to her claim for unfair dismissal and discrimination arise from the same set of facts and is in its essence a claim for dismissal taken under two pieces of legislation. 

The respondent’s business involves providing building materials to homes, hotels, farms, transport networks and every other form of business throughout the country.  It states that the complainant commenced employment with the company on 20 September 1999 as a Credit Control Assistant. The respondent submits that the complainant had been on long term sick leave since 1 February 2021. She remained absent from work until the date of termination effective 12 August 2022. The complainant worked approximately 34 hours per week.

Background to the complaint

The respondent states that on 1 February 2021, the complainant furnished a medical certificate deeming her unfit to resume duty. A summary of her medical certificates received are below. 

Table 1 – absence history

The respondent states that on 24 March 2022, the complainant attended an occupational health assessment with Dr. M (occupational health), in line with the respondent’s Absence Policy. The occupational health assessment stated:  

“it will be good for her to get back to work in a part-time capacity but she is not yet ready to commence this. It is too early to state whether or not she will be able to get back to working the previous hours that she did, I expect that she will need to be accommodated with reduced hours for 4-6 months after she returns.”

On 8 April, the respondent wrote to the complainant outlining that she had been absent from the business since 1 February 2021. The respondent invited her to attend a meeting with the company on 15 April to discuss:    

a.      The complainant’s current medical prognosis and requested her to bring any supporting documentation contrary to the Company Doctor’s opinion/prognosis.

b.      What measures/positive steps she has taken to improve her health and wellbeing.

c.       When she believes she will be fit to return to her full duties.

d.      What other alternative roles she has considered that would be suitable.

e.      What if anything the respondent could do to facilitate a full/phased return.

f.        Discuss her capability to remain in her role as an Administrator (for the record, this should have stated her role which was Credit Control Assistant). 

The respondent states that on 15 April, the complainant attended the capability. During the meeting, she advised that:

a.      She is doing rehabilitation daily and doing radioactive box therapy on her spine in 6 weeks. 

b.      Her progress over the past year has been slow. She is on main medication at the moment. 

c.       She did not consider any alternative roles. 

d.      The respondent asked the complainant whether she would come back on a phased return or part time basis whereby she stated she did not know as she was still on crutches.

On 22 April, the respondent wrote to the complainant summarising the meeting held on the 15 April and advised they would hold a further capability meeting in two months’ time.

On 5 May, the complainant attended a further occupational health assessment with Dr. M. Dr M’s assessment concluded: 

“I certainly got a sense that this lady is working hard at trying to regain her mobility and independence, and she is quite disappointed with her lack of progress. I have arranged to get consent from her to contact her Neurosurgeon for a report with an update and recommendations. Although I believe it would be good for her to get back to work in a part time capacity, she remains unfit to do so.” 

The respondent states that on 22 June, the complainant attended a further occupational health assessment with Dr. M. The occupational health assessment stated: 

“This lady is working hard at trying to regain her mobility and independence, she is quite disappointed with her slow rate of progress, but recognises that it is going to take time. Her morning rehab exercises are extremely important and she needs to continue to do these. Unfortunately she remains unfit for work duties. I had previously discussed the possibility of her resuming doing office-based work duties with her. However, I believe that such a sedentary role would not be good for her. The role she did in which she was up and down and moving around would be ideal in many ways, but she is still not mobile enough or fit to resume these duties.”

The respondent states that on 1 July, it wrote to the complainant to invite her to attend a capability hearing on the 8 July. The respondent outlined that the Company Doctor deemed her unfit to work. The respondent asserts that the Company Doctor further noted a sedentary desk-based role would not be good for her in terms of regaining mobility adding that she is not mobile enough or fit to resume duties that would involve moving about. The respondent outlined that it was stated “if following this hearing the company conclude that it is unlikely that you will be able to return to work in the short to medium term a decision may be made to terminate your employment due to capability”.

The respondent states that on 11 July, the complainant attended a capability hearing meeting. The meeting was chaired by Ms CR (HR Business Partner). The complainant was accompanied by her SIPTU representative. The respondent submits that the complainant stated that she had not yet begun radioactive box therapy and had no indication when it would be. The complainant mentioned that she was attending physiotherapy weekly and alternative physiotherapy monthly. The respondent outlines that the complainant stated that there is nothing the company could do to facilitate a full/phased return at this time and she mentioned that she was doing everything in her power to get back to work.

The respondent states that on 15 July, Ms CR wrote to the complainant to confirm the outcome of the capability hearing. The respondent states that the complainant confirmed that she remained unfit to return to her role and will continue to do so indefinitely until a time whereby progress has been made in her rehabilitation. The respondent reiterates that the occupational health report confirmed that a sedentary role would not be good for her in relation to her rehabilitation but also that she is not fit at this time to be working in a mobile role. 

Ms CR stated that the complainant attended three occupational health assessments, namely 24 March 2022, 5 May and 22 June, whereby the doctor deemed the complainant unfit for normal duties. Ms CR concluded that the company must terminate her employment due to capability effective from the 12 August 2022. The respondent states that the complainant was provided with the opportunity to appeal this decision.

The respondent states that on 19 July, the complainant wrote to the respondent to advise that she wished to appeal the decision to dismiss her, on the grounds that she allegedly was not granted natural justice and fair procedure and afforded reasonable accommodation to return to work.  On 27 July, the respondent wrote to the complainant in relation to the appeal and invited her to attend an appeal hearing on the 4 August. On the same day, the complainant responded to advise that her representative is on annual leave until the 18 August and advised the meeting will need to be postponed. On 17 August, the respondent wrote to the complainant to invite her to the rescheduled appeal hearing on 22 August. The respondent states that on the following day, the complainant confirmed her attendance, along with her representative of SIPTU.

On 22 August, the complainant attended the appeal hearing. The appeal was heard by Ms LB, HR Manager. The complainant was accompanied by her union official. The complainant‘s union representative stated that the complainant was “deeply disappointed that the HR department is conducting the appeal as it is their decision to dismiss Marie.” Ms LB advised she had no involvement throughout the initial process but that she could arrange someone else to hear the appeal. The respondent states that the complainant confirmed that she was happy to proceed with Ms LB hearing the appeal. The respondent asserts that during the hearing, the union representative raised the following points:

a.         The complainant felt discarded from the company because of her disability.

b.         Internal vacancies were not made available. 

c.          She did not receive a risk assessment.

d.         The most recent Occupational Health Assessment stated the Doctor would like to review the complainant. 

e.         The complainant’s role was advertised on 1 February 2022 and this inferred a predetermined decision was made regarding the complainant’s dismissal.

The respondent states that on 7 September, Ms LB wrote to the complainant to provide the appeal hearing outcome letter. In response to the points raised by the complainant’s union representative, Ms LB stated that;

a.      The company rejected the allegation that the company discarded the complainant because of her disability and was disappointed that she felt that way. Ms LB stated that the complainant attended occupational health on a number of occasions and was deemed unfit to work and a timeframe for return could not be provided. The company could not hold her role open in an indefinite duration.

b.      Ms LB stated all vacancies are available on Work vivo and People XD (the respondent’s career vacancies platforms), which the complainant had accessed on 14 occasions during the month of July 2022.

c.       Based on medical evidence, the complainant was not fit for sedentary or mobile work, and it would have been inappropriate from a duty of care perspective to conduct a risk assessment. 

d.      The occupational health assessment conducted on 5 May stated the doctor would like to rereview her in 3 / 4 months, the complainant’s role remained open since February 2021 and given there had been no update on her prognosis, it was untenable for the company to keep the role open indefinitely.

e.      The respondent states that Mr MC, Branch Manager spoke with the complainant in advance of the role of Credit Controller Assistant being advertised, and the reason for the role being advertised was a result of a resignation in the branch and she was assured that a role would be available on her return.

f.        The respondent stated that the complainant’s appeal is not upheld, and the sanction of dismissal on the grounds of capability stands. 

The complainant received her final payslip which she received her annual leave compensation and notice period.  

Claim under the Unfair Dismissal Acts – CA-00055402-001

In accordance with section 6(4)(a) of the Unfair Dismissals Act 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the capability of the employee:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do […]”

The respondent asserts that during her long-term absence, the complainant was invited by the respondent to attend the company doctor on three occasions for medical assessment on her fitness to work. On all occasions, the company doctor was of the opinion that she would not achieve a return-to work capability at any time in the foreseeable future. The respondent states that on foot of the medical evidence, the company invited her to three capability hearings. She was informed that the outcome of the meeting may result in the termination of her employment the grounds of capability. The respondent states that given the circumstances and based on the medical information, the company made the decision to terminate her contract of employment. 

The respondent asserts that it is a long-established principle that persistent absence from work, whether certified or not, may render an employee incapable of doing their job and, as such, justifies dismissal. It states that one of the earliest cases to address this was Reardon v St. Vincent’s Hospital, UD74/1979. In that case, the complainant had several prolonged absences over a period, all of which were medically certified. The Tribunal found the dismissal not to be unfair on the grounds that he was not capable under section 6 (4) of the Unfair Dismissals Act 1977 of carrying out the job for which he was employed. 

The respondent states that moreover, in Behan v An Post, UD 320/2006, for example, this position was reaffirmed where in the case of an employee with a prolonged absence record, the Tribunal determined:

“[T]he claimant had rendered himself incapable of fulfilling his obligations to his employer under his contract of employment. […] In the circumstances because of the claimant's incapacity to fulfil his contract with his employer in a reasonable fashion the Tribunal consider his dismissal fair in all the circumstances”.

The respondent asserts that the same principle applies in this instant case. It states that the complainant’s prolonged absence, considered in addition to the advice of the company doctor that she would likely not achieve a return-to-work capability at any time in the future, rendered her incapable of conducting the job for which she was employed to do. The respondent states that accordingly, her dismissal was fair in light of the principles as established through the case law of the Tribunal.

The respondent highlights the case of Bolger v Showerings (Ireland) Limited, ELR 184 which has four key requirements needed for a dismissal on the grounds of incapability to be fair: 

i.                ill health must be the reason for the dismissal;

ii.              this must be a substantial reason;

iii.            the employee must have received fair notice that the question of dismissal for reason of incapacity was being considered.

iv.            the employee must be given the opportunity of being heard.

The respondent submits that it is clear from the facts of this case that it can demonstrate all the above: 

i.              it was clearly the case that the termination of employment was on grounds of incapability based on current medical advice;

ii.            there was no other reason for the dismissal;

iii.          the complainant was informed throughout the capability meeting process, and by letter, that her employment may have to be terminated on the grounds of incapability;

iv.           the complainant was given every opportunity to provide representations on her behalf and throughout the process.

The respondent states that in support of its position, it refers to Health and Fitness Club v A Worker EDD037 where the Labour Court stated:

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At the minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must be allowed an opportunity to influence the employer’s decision. …. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”  

The respondent states that the basis on which the employment relationship exists is based on mutuality of obligation, i.e., the employer provides employment for a consideration of wages; the employee undertakes to provide that work in return for consideration. It is an inherent factor in any working relationship that the employee attends work, thus, fulfilling their part of the contract. The respondent asserts that by not attending work on a regular basis, an employee is not fulfilling their contractual obligations. If an employee is unable to fulfil their contract of employment due to illness, an employer may be left with no option other than to terminate employment, based on available medical advice.

The respondent states that it had in place a clear policy for managing absence, which outlined a standard procedure to follow in the event of prolonged absence as a result of incapability to return to work owing to long-term illness. It states that the system in place in the company demonstrates an incremental and consistent approach, involving regular monitoring and reviews in order to provide assistance and clarity to the employee. The ultimate step should the employee be unable to achieve a return-to-work capability, is termination of employment.

The respondent states that it is necessary to examine whether, at the point of the decision being made, the employee is capable of carrying out their role into the future. The respondent asserts that based on the medical advice in this case, this unfortunately was not the case. It states that the role of the respondent is not to examine the cause of the absence. Neither the respondent nor the complainant are medically qualified to make such a decision. The respondent states that the decision taken to dismiss the complainant was difficult. However, based on the complainant’s disability, the company doctor was unable to provide a return-to-work date and was of the opinion that capability for work would not be achieved in the foreseeable future. The respondent states that taking all the factors into account, the company was left with no alternative but to terminate the complainant’s employment on the grounds of incapability.

The respondent states that the complainant’s dismissal was not taken lightly and in order to give her every opportunity they could, it arranged for her to meet with the company doctor on three occasions, with a follow-up consultation subsequent to the first appointment, and arranged capability hearings with the complainant. The respondent submits that it endeavoured to facilitate her in returning to work and had they received a medical confirmation that she was fit to do so, it would have assisted her to return to work if possible. Unfortunately, this was not the case. 

The respondent states that procedurally, it conducted a fair process and was open minded in their approach to the complainant. In relation to the procedures used to implement this dismissal, she was afforded all benefits of fair procedure, in line with the respondent’s established policy and the universal principles of natural justice. The respondent outlines that the company complied with its obligations under S.I 146/2000 Code of Practice on Grievance and Disciplinary Procedures. It states that all the evidence in its entirety was considered, including her representations, before any decision was made or action taken. The respondent states that she was afforded the right to appeal, which she chose to exercise. 

The respondent states that up to the last date of the company’s engagement with the complainant, by her own submissions, she remained unfit to perform the core duties of the job for which she was employed or any other alternative job. In light of all of the above, the respondent believes it to be clear that the dismissal of the complainant was procedurally fair in all respects. The respondent came to a reasonable conclusion that the complainant was unfit and unable to return to work. It states that this conclusion justified her dismissal on grounds of incapability and was reasonable, under the circumstances. 

Claim under the Employment Equality Acts  

The respondent states that Section 6 (1) of the Employment Equality Acts 1998 to 2015 states: 

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated”.

Section 6 (2) provides that as between any two persons, the discriminatory grounds are inter alia:

“(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”)”

The respondent states that notwithstanding its rejection of the allegations by the complainant, the complainant has not disclosed a prima facie case under the Employment Equality Acts 1998 as is required. It states that in particular, she has not identified any comparator in relation to whom they were less favourably treated. 

The respondent does not dispute that the complainant had a disability within the definition contained in the Acts. However, it rejects the allegation that she was discriminatorily dismissed from employment for having a disability. It states that the complainant’s employment was terminated by reason of capability which is allowed for under section 6(4)(a) of the Unfair Dismissals Act 1977–2015. The decision to terminate her contract of employment was based on medical evidence. It is the respondent’s position that the complainant was not fully fit to perform the duties associated with her role. The respondent states that the complainant submitted a medical certificate on 1 February 2021 which placed restrictions on her fitness to return to work, which coincides with the opinion of the three occupational health assessments she attended, such that the complainant would not have been in a position to fulfil her contractual duties.

The respondent states that it took reasonable steps to enquire of the capability of the complainant to return to work and to perform her role through referral to occupation health. The complainant was absent from work for a total of 18 months prior to the termination of her contract of employment. At all material times, Ms CR, who met with the complainant and conducted the capability hearing in July 2022, not being medically trained, based her discussions with the complainant on available medical records and medical information provided by the complainant and from the company doctor. It was noted during the appeal process that the complainant was aware of vacant roles on the respondent’s website as she has accessed the website on 14 occasions during July 2022. The respondent submits that this clearly indicates that she was aware of internal vacancies. The respondent further states that it was also clear during the hearings with the complainant that she showed no immediate sign of returning to work. 

The respondent asserts that Ms LB noted in her appeal outcome letter that “all roles within the respondent are either of a physical or sedentary nature. Furthermore, you ascertain that you should have been considered for remote work, would not have been suitable given based on the medical advice available, you remain unfit for a sedentary role, therefore, unfit to work from home.” The respondent states that this indicates that the company considered the possibility of remote work but given the latest occupational health report stated that the complainant was “unfit for office based duties…, that a sedentary role would not be good for her and that she was not mobile enough to fit enough to resume these duties”, it would have gone against medical advice. The respondent further states that the fact that Mr MC (Branch Manager) spoke with the complainant in early 2022 and reassured her that a role would be available to her upon her return, does not negate Dr M’s assessment in June 2022. The respondent states that the complainant remained unfit to return to work. 

Ultimately, the respondent states that it had to make a business decision with the information available to it, and all material facts concerning the complainant’s capability. It states that the complainant was given fair notice that the possibility and question of dismissal for incapability were being considered. It states she was given opportunity to participate fully in these investigations and to influence the respondent’s decision.

The respondent refers to the caselaw in Josephine Hennessy and Waterford Child Care Limited (UD1758/2012) to support its position:

“The facts of this case show that after a prolonged absence, the appellant was still not fit to return to work and further, that any meaningful prognosis was not possible. At no point prior to her dismissal nor, indeed, following the notice of termination of her employment, did the appellant indicate either that she was fit to return to work or would be within a reasonable period… However, the Tribunal is of the view that the steps taken by the respondent to establish the true medical position were reasonable... While a higher level of consultation with the appellant would have been preferable, the Tribunal is satisfied that this would not have influenced the ultimate decision one way or the other.”

The respondent states that direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed.

The respondent submits that the complainant has not clearly identified another person who in comparison she can argue she had been treated less favourably than or would be treated. Thus, it states that she has provided no evidence that she has been treated less favourably than another person is, has been or would be treated. The respondent further states that the complainant has  failed to establish a causal link between any alleged discriminatory treatment and her disability.

The respondent asserts that indirect discrimination is deemed to occur where an apparently neutral provision, puts persons at a particular disadvantage compared with other employees based on one of the nine grounds covered by the Acts. The respondent submits that there is no evidence to show that the complainant has been indirectly discriminated against.

The respondent states that it has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when he/she has discharged this burden that the onus shifts to the respondent to rebut the inference of discrimination raised.

The respondent asserts that in the case of Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established, was further outlined by the Labour Court where it stated:  

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred”.  

The respondent submits that in Melbury Developments v Arturs Valpetters (EDA0917), the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant:  

“… must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.   

The Court added that “… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”  

Reasonable accommodation

The respondent asserts that the length to which an employer must provide reasonable accommodation to an employee was referred to in the Supreme Court decision of Marie Daly v Nano Nagle School 2019 IESC 63, where the Court stated:   

“The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to "the position", not to an alternative and quite different position.”

The respondent submits that in Health Services Executive v Marie O’Shea EDA2227, the Labour Court provided further insight which is relevant to the current case before the Adjudication Officer:  

“Charleton J unequivocally pointed out at paragraph 10 of his judgment in Nano Nagle that section 16 of the Act places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired:

“The requirement to redeploy does not arise under the 1998 Act in this jurisdiction. Thus such cases as cited above [i.e. Archibald v Fife Council [2004] UKHL 32, [2004] I.C.R. 954 and Chief Constable of South Yorkshire Police v Jelic [2010] I.R.L.R. 744] from the England and Wales jurisdiction would not carry the same imperative here.”

The respondent states that it consulted with the complainant throughout the process and although this is not required as per Nano Nagle, the respondent engaged in meaningful participation which allowed the complainant to suggest alternatives or make recommendations in relation to a potential return to work. MacMenamin J referred to this in his remarks: 

“I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act.”

The respondent outlines that the complainant’s submission notes that Professor N {my emphasis} “can provide his expert opinion on the whole of her recovery process and is in a better position to give an informed opinion that (sic) Dr M {my emphasis}.” The respondent respectfully argues that Professor N’s October 2023 report is a retrospective report and was not provided during the capability meetings that the complainant attended in 2022 or at the capability dismissal and appeal hearings. 

The respondent submits that the complainant was advised throughout the process to produce medical evidence which may counter Dr M’s prognosis. It states that this is clearly marked in all the capability meeting invite letters: “please bring any supporting documentation if you disagree with our Company Doctor opinion/prognosis.” The respondent also notes that the complainant was  represented by experienced representatives from SIPTU throughout the entire process. 

The respondent states that while it respects the credentials and medical opinions of Professor N, it respectfully suggests that Dr M is the most competent person to determine the capability of the complainant from an occupational health perspective. The respondent states that a search on the Medical Council of Ireland’s website shows that Dr M is qualified in Occupational Medicine.

Preliminary Issue – Time Limits

While the respondent has argued that the complaint is out of time under section 77(5)(a) of the Acts; I note that the complaint was submitted on 6 March 2023, therefore the cognisable period is from 7 September 2022 to 6 March 2023. I am satisfied that the outcome of the appeal was issued to the complainant by letter of the respondent dated 7 September 2022. In those circumstances, I find that the complaint is within the 6 month period permitted under section 77(5)(a) of the Acts. Accordingly I have jurisdiction to hear the complaint.

I have considered all the evidence both written and oral presented to me.  Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.  If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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.  In this regard, I am cognisant of the Labour Court case in Arturs Valpeters v Melbury Developments [2010] 21 ELR 64.

The complainant has alleged that she was discriminated against on the grounds of her disability by the respondent. Disability” is defined in Section 2 of the Acts as meaning –

“(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”.

The complainant outlined that her disability relates to spine surgery with lumbar fusion and post-operative foot drop and paraesthesia. I am satisfied that the complainant’s condition is a disability within the meaning of the Acts and I am satisfied that her disability comes within the meaning of the definition as above.

The complainant submits that (i) she was discriminated against on grounds of her disability (ii) there was a failure by the respondent to provide her with reasonable accommodation and (iii) she was discriminatorily dismissed.

 Section 16 of the Acts provides:

“For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer,

(4) In subsection (3)-

“appropriate measures” in relation to a person with a disability –

(a)    means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b)    without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c)     does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for herself or herself;”  

I am guided by the Labour Court determination in the case of Humphrey’s v Westwood Fitness Club EED037 which was upheld by the Circuit Court.  The Labour Court stated:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      “At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition…… In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s 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 either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant’s own doctor or an independent doctor where there are concerns in relations to the health of a worker. 

A leading textbook on Irish Employment Equality Law (Bolger M., Bruton C. and Kimber C. Employment Equality Law (Second Edition) summarised an employer’s duties under the law as follows:

“In summary, the case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment).”

In the case of Nano Nagle School v Daly 2019 IESC 63, the Supreme Court held;

“section 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.”  

“full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures”

“the words of section 16(3) provide that a person will be seen as fully competent if they would be fully competent on reasonable accommodation”

In the case of A Government Department v A Worker ADE 0516, the Labour Court held: “The duty placed on an employer by section 16(3) includes by implication, a requirement to make a proper assessment of the situation before decisions are taken which may be of detriment to the disabled employee… This necessarily involves discussing the matter with the employee or their medical advisors.” 

Where a respondent is required to prove that the principle of equal treatment was not infringed, I am cognisant of the comments of the Labour Court in the case of A Technology Company v A Worker EDA0714 in relation to the possibility of unconscious or inadvertent discrimination. “The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability.  The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”   

Having carefully examined all of evidence adduced in the within matter, I find that the respondent did not carry out a thorough assessment in relation to the needs of the complainant as outlined above.

I note that in the letter of the respondent dated 7 September 2022 which upheld the termination of employment, the following point was repeated within the letter on a number of occasions “In your most recent occupational health assessment, the physician further stated that you were unfit for a sedentary role and unfit for a role in which you are required to be mobile.”  Having examined Dr M’s report he stated that “I had previously discussed the possibility of her resuming doing office based work duties with her. However, I believe that such a sedentary role would not be good for her”.

Having carefully examined the documentation submitted, I find that there was an over reliance and misinterpretation by the respondent of the occupational health reports. I find that the respondent has misquoted Dr. M’s medical report in an attempt to justify its decision to terminate the complainant’s employment. Dr M did not state in any of his reports, contrary to the respondent’s assertion, that the complainant was unfit for a sedentary role.

I note in his report dated 24 March 2022, Dr M stated “it will be good for her to get back to work in a part-time capacity but she is not yet ready to commence this. It is too early to state whether or not she will be able to get back to working the previous hours that she did, I expect that she will need to be accommodated with reduced hours for 4-6 months after she returns”.

The complainant stated that at her meetings with HR that she would take any role in the company if it meant she could get back to work.  I note from the hearing that that the complainant was not legally represented during the capacity process. At one such meeting, she stated that she asked the respondent had they engaged with her own doctor.  The complainant further stated that she had given consent to Dr M to consult with her treating Physician, Dr N. The complainant stated in her testimony that she was not aware of the need to present alternative medical evidence.  However following her dismissal, she obtained a medical report from her treating Consultant, Dr N.

I am very cognisant of the medical report provided by Dr N, the complainant’s Consultant Neurosurgeon. Dr N stated “From the point of view of her employment being ceased, I think she certainly could have been accommodated in the role of accounts assistant in many ways and perhaps even a hybrid role or working from home and the fact she is able to sit and perform most of her duties and she is also able to independently mobilise.”

Dr N states “I do feel that she is fit to work in the same role, perhaps with a different job description but her current situation remains that she is independently mobile with one stick and is able to drive and I do not see any reason why she cannot be working in the capacity of accounts assistant.” 

I note that Dr N’s opinion was that the complainant could have continued in her employment if she had been provided with reasonable accommodation.

Having heard the evidence presented, in my view the respondent did not carry out a comprehensive assessment into the specific needs of the complainant which would have enabled her to continue in her employment.

I note that in his final report dated 22 June 2022 which was based on a consultation with the complainant by phone, Dr M stated that he would like to review the complainant in 3-4 months time. However the respondent issued a letter to the complainant on 15 July 2022 stating that the employer had concluded that it must terminate the complainant’s employment due to capability. I find this decision stark given that the consultation with Dr M on 22 June was by telephone and further the report does not consider what work /duties the complainant would be capable of performing had reasonable accommodations been considered to allow her continue in employment.   

It is noteworthy that in February 2022, in a meeting with her manager MC, he explained to the complainant that the company would have to advertise her role as credit controller as he stated that the branch could not function without a full time credit controller. He also assured the complainant that “there would be a position for her on her return as the company had a vacant receptionist role and failing that P {my emphasis} would be retiring from her administration role in July which might be a better option as part-time working hours could be facilitated for a period until she was back to herself”.  While these assurances were given to the complainant by the respondent, there was a failure by the company to assess the complainant for suitability for either of these roles.

The respondent did not examine or consider a hybrid role or working from home as a modification to the complainant’s existing role.  I am cognisant of the complainant’s testimony at hearing where she stated that she had 37 years service with the respondent and she stated that she loved her job. It is also noteworthy that the respondent’s witnesses confirmed that the complainant was an excellent worker and made a significant contribution to the success of the company.  

The case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to an employee. In the within matter, I find that there was a failure by the respondent to consider reasonable accommodation measures to allow the complainant continue in her employment by way of a hybrid role to include the possibility of working from home or modifications to the complainant’s existing role. I am mindful that the consultations on 5 May 2022 and 22 June 2022 were carried out by phone and that Dr M in his report of 22 June stated that he would like to review the complainant in 3-4 months time, however the respondent took the decision to dismiss the complainant on grounds of capacity in July 2022. 

Based on the totality of the evidence heard in the within case, I find that the complainant has demonstrated a prima facie case of discrimination on grounds of her disability and the respondent has not rebutted this evidence.   I find that there was a failure by the respondent to provide the complainant with reasonable accommodation.   

The definition of dismissal within the Employment Equality Acts covers dismissal and constructive dismissal.  Section 2 (1) provides that dismissal includes,

                                           “the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so..”. 

I find based on the evidence heard that the complainant has established a prima facie case of discriminatory dismissal on grounds of her disability and the respondent has failed to rebut said case. I conclude that the complainant was discriminatorily dismissed on grounds of disability from her post following 37 years service with the company.

I find that the complainant was discriminated against on grounds of disability by the respondent in her conditions of employment.

I find that there was a failure by the respondent to provide reasonable accommodation to the complainant.

I find that the complainant was subjected to a discriminatory dismissal on grounds of her disability.

In the within case, I find that the appropriate form of redress for the effects of discrimination is compensation.

In accordance with Section 82 of the Act, I order the respondent to pay the complainant €60,000 in compensation for the effects of the discriminatory treatment. This amount equates to a year and 9 months salary. The award is arrived at on the basis of the effects of the discrimination on the complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate” Von Colson CJEU C14/83.

The total award is redress for the infringement of the complainant’s statutory rights and therefore is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).  

I further order that the respondent carries out a review of its policies and procedures to ensure that they are up to date and in compliance with employment equality legislation. 

Employment Equality Acts, disability, reasonable accommodation, discriminatory dismissal