The complainant suffered from Benign Intracranial Hypertension which was accepted as a disability for the purposes of the Employment Equality Acts.  The complainant informed her supervisor of her condition about 6 months after her employment began.  Subsequently she was beset by complications requiring further surgery and time off work.

When she had been absent for 10 months her employer contacted her and a meeting was arranged for May 17 2010.  In the meantime the complainant developed a new gynaecological condition requiring surgery that was scheduled to take place on 1 June 2010.  The meeting took place and during that meeting the complainant discussed her pre-existing condition and her more recent condition.  The respondent wrote to the complainant requesting her to provide a return to work date by 8 June 2010 which should be no later than 14 June 2010.  She responded stating that she could not return to work by 14 June and that her doctor had advised that she could return in a short period.

The Equality Officer found that the complainant’s initial condition was a disability for the purposes of the Acts.  The respondent accepted that the complainant had indeed mentioned her condition during the meeting but that it was not realised that this was a disability.  The Equality Officer found that the respondent was on notice of the complainant’s condition at least from the date of the meeting.  She also found that the complainant’s inability to return to work was due to her disability and that the decision to dismiss was influenced by the complainant’s absence and her inability to return to work.

The complainant was awarded re-engagement from the date of dismissal with remuneration from 6 weeks later, meaning that the employer is required to pay almost three years pay, in addition to the award of €14,000 for the effects of the discrimination.  Consider too the order in respect of training which is likely to create considerable expense.

One thing that is not apparent from the Decision is why the second condition, the gynaecological condition, is not addressed.  Of course, information may have been produced that is not included in the decision but I would suggest that this second condition may have constituted a new disability, albeit correctable by surgery.

I would also suggest that a very simple reasonable accommodation that might have been afforded the complainant was some extra time to recover from the operation on 1 June 2010 relating to this second condition.  And finally, it is unclear whether it was the first condition, found to be a disability, that was actually preventing the complainant from returning to work or whether it was the more recent surgery relating to the second condition.  Frankly, however, the end result for the employer would likely be the same.

Full decision:

http://www.equalitytribunal.ie/Database-of-Decisions/2013/Employment-Equality-Decisions/DEC-E2013-032-Full-Case-Report.html

Why is this case important?

• Do your managers know to pass on to HR any information they are given in respect of an illness or condition that an employee informs them off?
• Does whoever makes dismissal decisions understand the concepts of, and provisions relating to, reasonable accommodation in addition to direct discrimination on the disability ground?
• Where new illness information is presented in the midst of an absence review process how is that handled?