The complainant worked with UPS since 1999 and was promoted to lead driver in 2002.  The respondent indicated that over time the time allowed for administrative duties as part of this role was compressed into 45 minutes.  In 2009 the complainant was certified as unfit for work until on 27 April 2010 he was certified as fit for work on light duties from 11 May 2010.  The respondent received a letter from its own occupational health specialist dated 4 May 2010 indicating that the complainant was capable of all non-manual handling activities.  The complainant turned up for work on 11 May 2010 much to the surprise of the Operations Manager.  An impromptu meeting was held between the Operations Manager, the complainant and Mr. A.  The complainant was informed that there was no work for him that day and he was sent home.  The respondent concluded that there was no suitable role for him and he would have to be fully fit in order to return to work. One month later the complainant tendered his resignation on 10 June 2010 because the respondent had failed to provide him with hours. 

The Equality Officer found that the respondent did not fully inform itself as to the complainant’s capabilities both in respect of his manual handling capacity in terms of weight permitted and how long the state of affairs would last.  He stated that “the respondent therefore fell short in the obligations identified by the Labour Court in its jurisprudence, to get full information in a staff member’s disability and to be proactive in its approach.”

Of course, as always, it is noted that we are not privy to all of the information presented to the Equality Officer and it may be that the information contained in the OH letter was not clear.  Indeed it was the Operations Manager who indicated that he was unclear as to its meaning.  However, based on the information contained in the Decision, all manual handling was excluded on the basis that he was certified as capable of all “non-manual handling activities associated with his job”.  The respondent’s Operations Manager, stated at the hearing that “he looked at all available roles, and since they all involved manual handling it was clear to him that there was no work for the complainant in the organisation until he was 100% fit”.  This would appear to be within the range of reasonable responses to the medical information.

The Equality Officer looked at both issues, the extent of manual handling to be avoided and the duration of the incapability, before addressing the costs of any reasonable accommodation in terms of the employer’s ability to pay, before concluding that the complainant was entitled to succeed in his complaint of the denial of reasonable accommodation on the part of the respondent. 

The Equality Officer goes on to look at the complainant’s allegations of constructive discriminatory dismissal and applies the ‘reasonableness’ test.  He accepted that the complainant was forced to resign because he was not allowed to return to work and was not being paid by the respondent, although he was in receipt of payments from the Department of Social Protection as his only income.  This was accepted as constructive discriminatory dismissal.

This suggests that where a person is certified fit to resume work on light or limited duties and an employer is not in a position to provide them with work on light or limited duties then the person can claim constructive discriminatory dismissal even where s/he is in receipt of the statutory payments made in the normal course of sick leave.  This would appear to be a significant new approach.  The Equality Officer found that as the discriminatory dismissal flowed from the same set of facts as the failure to provide reasonable accommodation only one award of compensation was appropriate. 

The complainant was awarded 18 months salary, €63,000, which the Equality Officer stated took account of the size and financial capabilities of the respondent. 

In Decision DEC-E2013-083 (previously reviewed) the Equality Officer did not question or look behind the agreed medical information.  In this case, the Equality Officer suggests that the weight that the complainant could have handled should be questioned where the agreed medical advice states that all non-manual handling activities would be acceptable. 

Why is this case of interest?

• It finds that where an employer cannot provide work on limited duties an employee in receipt of the Department of Social Protection payments may claim constructive discriminatory dismissal.

The award has taken account of the employer’s ability to pay as distinct from, or in addition to, redress for the effects of the discrimination.