Adam Herzyk (the “Employee”) was employed as a driver with Assured Personnel Limited (the “Employer”). The Employee was absent from work for four months due to back pain. Subsequently, the Employee submitted a medical certificate confirming he was fit to work but should not work full-time and should perform light work only. The Employer asked the Employee if he was available to work seven days a week, despite being aware he was only medically certified to work part-time. Thereafter, the Employee made a number of attempts to seek work from the Employer and submitted a further medical certificate confirming he was “fit and well to undertake full-time work.” On 7 December 2017, the Employee submitted his resignation due to the “lack of perspectives and the company’s desire to continue future work…”

The Employee took proceedings against the Employer in the Workplace Relations Commission (the “WRC”) and, on appeal, to the Labour Court, claiming that, inter alia, due to the Employer’s failure to facilitate his return to work, the Employee had been discriminated against on the ground of disability pursuant to the Acts.

The Employer alleged the reason the Employee was not provided work was due to the business being seasonal and that it was low season during the relevant period, and as such, there was not much work available. The Employer further submitted that there had been an internal meeting to consider if he could be facilitated but the nature of the work meant it was not possible. This decision was not communicated to the Employee.

The WRC did not uphold the complaint on the basis that the Employee had failed to establish a prima facie case of discrimination. The Employee appealed this decision to the Labour Court.

Decision of the Labour Court

In overturning the decision of the WRC and upholding the appeal, the Labour Court found that the Employee was discriminated against due to his disability. The Court noted the Employer relied on the fact that it had applied a ‘First in First asked’ policy. However, when the Court reviewed the data provided, it was clear that other employees with less service than the Employee were offered hours during the relevant period. The Court also noted that the Employee was not included in the weekly group messages which were issued to all casual staff advising of the hours available, as he was out sick.

Although the Employer submitted that they had considered whether a reasonable accommodation could be made for the Employee, they had no documentation to support that contention nor could they explain why this was not mentioned in response to the numerous text messages from the Employee indicating his availability. As a result, the Court found in favour of the Employee and awarded him €10,000 in compensation.
https://www.workplacerelations.ie/en/cases/2020/september/eda2015.html