Background:

The Complainant has been a General Operative for the Respondent, Kilkenny County Council, since 6 June 2002. He was certified unfit for work on 12 November 2019, and was re-assessed by the Respondent’s GP on 30 July 2020. This GP found that the Complainant would be fit to return to work and perform “the majority of his duties as a general operative… on a full-time basis.” However this evaluation was subject to modifications to his duties which would except or modify his responsibilities regarding the cleaning of a sand filter, as such a task would involve lateral movement that would have an adverse effect on the Complainant’s medical issues.

The Respondent responded to that report, saying that “lateral movements are unavoidable in your General Operative duties presently and there is no scope… to avoid such movement.” As a result the Respondent found the Complainant unfit to return to work. The Complainant wished to return to work and engaged his own GP and a consultant orthopaedic surgeon, and in December 2020 the latter provided a similar assessment of the Complainant’s ability to return as the prior GP report. The parties met throughout the first half of 2021 to attempt to find a path to the Complainant’s return to a modified role, but no progress was made. In June 2021 the Complainant accepted an offer by the Respondent to do seasonal work cutting grass for 1.5 days a week, which the Complainant said he was compelled to accept, but after this work was completed the Complainant had no further work to do. Further medical reports were commissioned throughout the remainder of 2021 and 2022 until the Complainant was cleared to resume his full-time duties on 8 March 2022. The Complainant alleged the failure to provide a modified role was discriminatory on the basis of disability, and that the requirement to attend further medical assessments and the refusal to allow him to resume work was victimisation on the basis of disability.

Outcome:

The Adjudication Officer, considering the decision in Nano Nagle School v Daly 2019 IESC 63, found that the Respondent interpreted the medical evidence presented to it in an unduly restrictive way, and did not show it had adequately considered the Complainant’s ability to perform the other duties he was cleared to complete. These failures meant the Respondent failed to meet its obligation to provide reasonable accommodation to the Complainant. For this failure, the Complainant was awarded €15,000 compensation. The victimisation complaint was found not well founded.

Practical Guidance for Employers:

It is not the employer’s responsibility to interpret or second-guess medical advice, and if a medical evaluation makes specific restrictions the employer should not generalise or extrapolate on them in a way which unduly restricts an employee’s ability to work in a role.

The full case is here:
https://www.workplacerelations.ie/en/cases/2024/january/adj-00036201.html