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 stating that it was not in a position to take June back if there is a risk of exasperation of her condition whilst in their 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.
How might the Equality Acts help June?
June may have a claim for discriminatory treatment and possible discriminatory dismissal, depending on the circumstances, under the Employment Equality Acts.
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 appropriate measures and that the provision of such measures do not impose a disproportionate burden on the employer. The appropriate measures set out in the Act are adapting premises and equipment, changes to patterns of working, reconsidering the distribution of tasks and / or the providing additional training. The determining factors of whether the implementation of any of these measures would impose a disproportionate burden on the employer are cost, resources and the possibility of obtaining public funding or assistance.
So, what must the employer do that they have not yet done in June’s case?
The employer is obliged to meaningfully consider all the possible appropriate measures which could be implemented in June’s case in order to reasonably accommodate her and allow her to return to work. It is advisable that in order to ensure a fair procedure, the employer consults with the employee during this process. If the employer decides not to implement any appropriate measures after such a meaningful consideration of the situation, they are under an obligation to demonstrate to June that this decision was made as a result of the disproportionate burden that the measures would have on them in terms of cost and resources. The Supreme Court however has held in the case of Nano Nagle School v Marie Daly that such a decision must only be reached after exploring all possibilities including the possibility of obtaining public funding or assistance.
As a result, this can be a complex exercise for the employer and it is best to obtain individual advice and representation from one of our Advocates in the Workers’ Rights Centre if you, like June, are being refused to return to work as a result of a disability.
How does June go about making a claim?
A claim is made to the Workplace Relations Commission 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 Workplace Relations Commission. This is presently optional and if there is no resolution at this stage, then the claim is forwarded to an Adjudicator 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 Adjudicator may require that a particular course of action be taken by the employer, and/or they make an award. 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 42 days of receiving the decision from the Workplace Relations Commission.
“The above information is just a broad outline of the law and should not be used as a legal guide in this complex area. SIPTU provides a specialist individual representation and advice service for members who find themselves in trouble with their employer. The Workers’ Rights Centre can be contacted at 1890 747 881 or through the designated union official.”