This case involved a shop worker in Cork who had to leave work because of consistent back pain and after various medical assessments and physiotherapy she finally had to have surgery on a prolapsed disc on her back.

The complainant claimed that on the 8th August 2006 she wrote to the respondent with a letter from her Consultant Orthopaedic Surgeon which outlined the 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 respondent's letter in reply said 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", it went on to say that it required "clarity in great detail the exact duties which you can undertake."

In considering this case, the Equality Officer set out general guidance for all employers faced with potentially disabled employees who might be dismissed:

"In applying that approach it is clear that in situations where a person acquires a disability during the course of their employment the onus is most definitely with the employer to take the following steps;
1. to ensure it has fully established the factual position of impairment and the likely duration of this condition on the employee,
2. to establish what, if any, special treatment and/or features that maybe available to allow the employee to become fully capable, this will then be further considered with regard to nominal costs, and,
3. to keep the employee concerned fully aware of proceedings and allow for their participation at every level."

The correspondence between the employer and the orthopaedic surgeon was important - the employer knew the employee was not fit for all duties but could do some. The complainant was referred to a GP by the respondent but it was not disputed by the respondent that the report from the GP nor its findings were shared with the complainant. However the report lacked clarity as to what recommendations it had for the complainant's possible return to work, if at all.

Reasonable accommodation to assist disabled employees carry out duties must be considered under equality legislation. Section 16 of the Act provides that a person 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. Section 16 (1) states,

"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 - 
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be performed, or 
(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." 

However, section 16(3)(a) of the Employment Equality Acts tempers that defence: "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." 

Finding for the employee, the Equality Officer concluded:

"In order to complete the two stage test and satisfy section 16 (3) of the Acts, I would have expected the respondent to have consulted with the complainant 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 the complainant's ability to do the duties required for the job. I am satisfied that as the essence of the respondent's report is at odds with that of the complainant's medical opinion, there is then a definite requirement on the respondent to seek clarity. I am also satisfied that the lack of communication from the respondent on its medical report findings infringed the very principle for the need of strong communication and transparency between it and the complainant. Accordingly, I conclude that the respondent was not in possession of sufficient facts to be able to rely on a defence under section 16 of the Acts by not accommodating her return to work and that this amounts to discriminatory treatment in relation to her disability." 

In addition to €15k for distress, the EO ruled:

"... as the complainant is still an employee, the respondent shall meet with the complainant to establish whether the complainant wishes to return to work for the respondent, and if so, both parties shall (a) put a communications strategy in place to facilitate their future working relationship. And (b) the respondent shall expedite a return to work schedule for the complainant which shall include a re-assessment of the complainant's medical condition by a qualified Occupational Physician with regard to her duties with the respondent. This entire process shall be completed within 4 months from the date of this decision."
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