In An Employee –v-v An Employer (DEC-E2011-111) an Equality Officer set out general guidance for all employers faced with potentially disabled employees who might be dismissed:
* the onus is on the employer to take certain steps
* The employer must ensure that s/he has fully established the factual position of impairment and the likely duration of this condition on the employee;
* The employer must 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,
* The employer must keep the employee fully aware of proceedings and allow for their participation at every level.
Reasonable accommodation to assist disabled employees carry out duties must be considered under equality legislation. Section 16 of the Employment Equality Act 1998 as amended 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.
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 Equality Officer ruled that the company must meet with the employee to establish what her intentions are to return to work, and if so a communications strategy must be put in place to facilitate the future working relationship between the two parties. The company must also assist the employee returning to work by ensuring that a work schedule is in place and the employee’s medical condition is suitably assessed by an Occupational Physician with regard to her duties in the company. This must be done within four months of the decision.
Full case decision:
http://bit.ly/otNGmD
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