Background ⚓︎

The Complainant commenced employment with the Respondent employer in November 2017 as a legal executive, after the Respondent indicated her intention to run for election again and asked the Complainant if she would be interested in working with her.

In January 2019, the Complainant's employment was terminated by reason of redundancy. The termination letter stated that following a review of the structures in the office, it was found that the role of legal executive was not viable.

The Complainant claimed that her dismissal was discriminatory on the grounds of disability and that the Respondent failed to provide her with reasonable accommodation.

The Complainant's disability ⚓︎

The Complainant suffered from depression and was on medication. The Respondent claimed that it was not aware of the Complainant's disability. The Complainant submitted that the Respondent was fully aware as she had, on numerous occasions, spoken with the Respondent about her condition and treatment.

On one occasion, in March 2018, the Complainant brought an old photograph to work and when the Respondent saw it, she commented "look at you back then, your hair, how thin you were". The Complainant explained that she suffered from depression and that weight gain was a side effect of the medication she was taking. The Respondent replied, "yeah i was thinking that because when you came back into me in October you looked like shite". The Complainant submitted that on at least two other occasions, the Respondent referred to the Complainant's weight and she explained that it was due to her taking mediation for her illness.

In her decision, the Adjudication Officer ("AO") found that the Complainant's condition of depression and anxiety came within the definition of disability under the Employment Equality Acts 1998-2015. The AO also found that the Complainant's stress came within the definition due to the fact that the Complainant's stress was severe enough to exacerbate her pre-existing condition.

The AO found that the Respondent was on notice that the Complainant was suffering from a "stress related illness" upon receipt of medical certificates in December 2018 and Janaury 2019. The AO was also satisfied, based on the evidence, that there were at least two conversations where the Complainant disclosed that her weight gain was as a result of anti-depressant medication, therefore disclosing her disability.

Redundancy ⚓︎

The Respondent submitted that she needed to cut headcount, following an organisational review by the firm's accountant. The Respondent submitted that she felt the "last in, first out" was the fairest approach. The Respondent acknowledged that she did not follow a consultation process or afford the Complainant a right of appeal. She went on to refer to alleged performance issues with the Complainant and stated that she felt the Complainant was "building a case against her". The Respondent argued that the Complainant's health did not enter her mind when making the decision to make her role redundant.

The Complainant submitted that no other employees were selected for redundancy and claimed that the "last in, first out" principle was not followed.

In her decision, the AO noted that a review by the Respondent's accountant in 2018 suggested a reduction in the number of support staff. However, no action was taken by the Respondent at the time on foot of this review. It was only after the Respondent was in receipt of the Complainant's medical certificates that she sought to reduce headcount and she did so in the absence of any process whatsoever.

The AO noted that the Respondent alleged that the LIFO principle was used to reduce staff numbers. However, in that case, the AO noted that it was unnecessary for the Respondent to go into detailed evidence regarding alleged shortcomings in the Complainant's performance. The AO found the Respondent was unhappy with the Complainant's performance and that the receipt of medical certificates from the Complainant was "the straw that broke the camel's back". The AO therefore found that the Complainant was treated less favourably than employees who were not on certified sick leave.

Reasonable Accomodation ⚓︎

In relation to the question of reasonable accommodation, the Respondent claimed that the Complainant never sought any form of reasonable accommodation. The AO found that in reality there was no time for the Complainant to do so as her employment was terminated while she was on certified sick leave.

Outcome ⚓︎

Taking everything into account, the AO found that the complaint was well founded and awarded the Complainant the sum of EUR 20,000 in compensation.

The decision, once again, shows the importance of following a fair process before making the decision to terminate an employee's employment. It would appear that on foot of the review by the Respondent's accountant, that there may have been a genuine need to effect redundancies. However, no process was followed by the Respondent.

In this case the employer claimed that it was not "formally" on notice of the Complainant's disability. However, informal conversations together with medical certificates provided were sufficient to import knowledge of the Complainant's disability to the Employer. This is something employers should be aware of. Conversations regarding an employee's state of health should be treated seriously and may give rise to an obligation to engage with the employee further and to consider whether any form of reasonable accommodation is required.

Adjudication Officer Decision:
https://www.workplacerelations.ie/en/cases/2021/april/adj-00019658.html