Managing absence issues is difficult and cumbersome. In this email, we will take a closer look at how to manage long term absence correctly and use the case of Donaldson v Marks & Spencer (Ireland) Limited as an example of what not to do in terms of long term absence management.


The Facts

In the instant case, the employee, Ms. Donaldson was dismissed because of her long-term absence due to illness and Marks & Spencer (Ireland) Limited (“M&S”) failed to provide her with reasonable accommodation in relation to her illness.

The employee suffered from Benign Intracranial Hypertension which is a neurological disorder. The employee underwent an operation in May 2009 and was on certified sick leave from May 2009 until her dismissal in June 2010.

The HR Manager met with the employee on 17 May 2010. At the meeting on 17 May, Ms. Donaldson discussed her pre-existing condition and a more recent gynaecological condition. The employee also informed her employer that she was due to undergo surgery on 1 June 2010 and enquired about doing light duties on her return to work.

The HR Manager wrote to the employee by letter dated 17 May 2010 saying that the employee must provide a return to work date by 8 June 2010. The letter went on to state that the return to work date must be no later than 14 June 2010. The letter also specified that failure to contact the HR Department by 8 June 2010 would result in the employee’s dismissal. Ms. Donaldson responded stating that she could not return to work by 14 June 2010 but that her doctor had advised her that she could return in a short period.

In her response, she stated that her doctor had recommended that various accommodations should be made for her in the workplaces which were specified in the letter. She also asked HR to contact her to organise a meeting to facilitate her return to work as soon as possible. She received a letter from the HR Manager dated 9 June 2010 dismissing her on the grounds of ill health.

In this case, what did the employee have to prove?

1. That she had a disability.
2. That her employer knew of her condition.
3. That she was treated less favourably because of her disability.
4. That she established a prima facie case.

The employee satisfied all of the above.


What mistakes were made by the employer?

1. They failed to obtain any medical report on their own behalf.
2. They failed to consider making any reasonable accommodations for the employee in the workplace.
3. The employer acted too fast and made serious errors in their approach to dealing with the issue both in meetings and in correspondence.


Cost to the Employer?

1. The employee was re-engaged into her previous position with effect from 9 June 2010 with all consequential rights apart from pay.
2. The employee was paid with effect from 21 July 2010 (this was subject to tax and PRSI) until April 2013.
3. The employee received €14,000 in compensation which was not taxable.
4. The employer was directed to reasonably accommodate the employee in relation to her needs.
5. The employer was directed to ensure that all staff, and in particular the HR Department, received training in equality matters.

The lesson from this case is that employers need to ensure that they are fair and reasonable in dealing with long-term absence issues. The equality legislation imposes an onerous burden on employers regarding their obligations in dealing with disabled employees. Employers must ensure that they have all of the relevant facts of the case in front of them and that they do not make decisions in relation to an employee’s medical condition without the benefit of medical advice from a qualified medical expert.