June is a shop worker who suffered an injury to a disc in her back whilst playing basketball. She had to take prolonged sick leave because the injury required surgery. She wrote to her employer 12 months later with a letter from her Consultant Orthopaedic Surgeon which outlined her medical situation to date and said, “She is now fit to resume her work on a part time basis initially. She would be fit for her normal work practice except for lifting heavy bags”. The employer replied that it was “not in a position to take you back if there is a risk of exasperation of your condition whilst in my employment”. The company doctor examined June but the employer did not share the conclusions with June nor did it recommend proposals for a return to work if any. What can June do?
There may be a claim for discriminatory treatment and possible discriminatory dismissal, depending on the circumstances, under the Employment Equality Acts.
What grounds under the Equality Acts are we talking about?
Disability is one of the nine grounds referred to under the Employment Equality Acts. Disability is given a wide definition and is different from temporary sickness in that disability must refer to physical, mental or psychological impairments which hinder an employee from carrying out his/her work for a long period of time.
We are focusing here on a specific provision of the Act where an employer is obliged to reasonably accommodate June to carry out her duties. Section 16 provides that an employee with a disability must be considered fully competent and capable of performing the duties attached to a particular post providing that the person could do so with the provision of special treatment or facilities, providing the provision of such did not give rise to more than a nominal cost to the employer. If the employer can show that the cost of accommodating June would lead to substantial increased costs then the case may prove difficult for June. Therefore there is no ultimate right, for example, to return to light duties. The determining factors will be cost and the reasonableness of the employer’s behaviour.
The cost issue seems an easy cop-out for the employer – he could for example argue that he might have to employ, or relocate someone else, to do heavy lifting. Has June any further arguments she could use?
Yes she has. Inherent in the above is the requirement that reasonable appropriate measures are taken by the employer. He should have consulted with June and sought to refer her to a specialist particularly when the GP’s report lacked clarity regarding the duration of her condition and it failed to match June’s. The employer needed to seek clarity because the report of the company doctor, on the face of it, seems to be at at odds with June’s medical opinion. The lack of communication from the employer on its medical report findings infringed the core principle for the need of strong communication and transparency between the employer and June.
How does June go about making a claim?
Equality is the most complex area of employment law so therefore it is essential to get specialist advice. If June was a member of SIPTU then she could be advised and represented in any potential case by an advocate from the Workers Rights Centre (WRC). A claim is made to the Equality Tribunal within six months of the last discriminatory act in the case of a claim of discriminatory treatment. If the action of the employer resulted in the termination of June’s employment, then the claim would be lodged from the date of what would be termed “discriminatory dismissal”. Mediation without prejudice is now offered by the Tribunal. This is presently optional and if there is no resolution at this stage, then the claim is forwarded to an Equality Officer for a formal hearing. A SIPTU advocate can advise further on this.
What might June expect by way of award?
If June was found to be successful then the Tribunal may require that a particular course of action be taken by the employer , and/or make an award. The limit is two years pay, or up to a maximum of €40,000, whichever is the greater. Awards of two years pay are not commonly made but awards can take into account the distress suffered, unlike Unfair Dismissal which awards compensation based on monetary loss alone.
Cases can be appealed to the Labour Court within six weeks of receiving the decision from the Equality Officer.