FACTS
The claimant commenced employment with the respondent as an Operations Manager for the Republic of Ireland in December 1997. She was officially promoted to the role of Head of Operations in December 2006. In December 2007 the claimant was diagnosed with breast cancer and had to take sick leave from her position in order to undergo treatment for her illness. During this time, the claimant alleges that she was put under a lot pressure to make decisions about her job and her future with the company.
This alleged pressure was primarily applied by the CEO of the company and came in the form of repeated requests to attend meetings with her superiors and to commit to a return to work date. In addition, the claimant was informed that her full salary would cease to be paid to her after the month of April. This caused the claimant to suffer from significant worry and anxiety which she feels affected her recovery. The claimant emailed the owners of the company setting out her concerns and was informed that all work related concerns must go through the CEO of the company.
The claimant was declared fit to return in October and attended a pre-work meeting at which she was informed that a number of changes had taken place during her absence which would affect her role with the company. She was given a week to consider the matter and was informed that her return to work was contingent on her acceptance of the respondent’s terms and conditions. Communications between both sides became strained in reaching agreement on her return to work culminating in the claimant’s constructive dismissal from the company.
DETERMINATION
The tribunal found that the claimant had an entitlement to return to work as soon as she was deemed medically fit to do so. The tribunal determined that from the date the claimant’s return to work was made contingent on matters other than her being medically fit to return to work, the claimant was entitled to consider herself constructively dismissed. The tribunal found that the fact that the claimant did not immediately resign at that point, but resigned later when she realized that matters were not going to be resolved, was irrelevant. The tribunal awarded the claimant the sum of €90,000.00.
LEGAL REVIEW
Here we see the importance of the employer not preventing an employee returning to work. In this case, the tribunal afforded weight to the fact that the claimant had informed her employers that she was deemed medically fit to return to work and was both ready and willing to do so. While the tribunal accepted that there was some equivocation regarding the return to work by both the claimant and the respondent, the tribunal found that this equivocation resulted from the actions of the respondent. It our view, it would have been legitimate for the employer to seek a small amount of notice as to the return date, and to have a discussion with the employee about re-integrating her into the business, but not to impose conditions upon her return, unless those conditions were founded on medical advice.
The decision of the tribunal turns on the fact that the respondent made her return to work contingent on factors aside from her fitness to return to her position. In the circumstances the tribunal found that it was reasonable for the employee to consider herself constructively dismissed. In constructive dismissal cases, the tribunal will examine the conduct of both the employer and employee, together with all the circumstances surrounding the resignation, to establish whether or not the decision of the employee to resign was a reasonable one. The reasonableness of both the employer and employee’s actions is therefore a significant factor in cases of constructive dismissal.
CONCLUSION
In this case, it seems that the employer was not minded to allow the employee return to work, without changes to the role. In fact, they should have allowed the employee to return to work, and then implemented any changes that they needed (assuming they were contractually entitled to). If they had done it this way, the employee would have had a much weaker case.
Full Decision:
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