The complainant worked as a supervisor in an area where vegetables were prepared in chlorine-containing baths before packaging.  She developed a bitter taste in her mouth and stomach aches in early 2008 and went on sick leave until February 2010.  Following further medical visits and a number of meetings at work (including one following which the complainant allegedly suffered a breakdown) the complainant was dismissed.

The Equality Officer was not satisfied that the respondent was put on notice as to the complainant’s breakdown and was satisfied that it did not contribute to the respondent’s decision to dismiss the complainant.  The respondent accepted that she was dismissed and that it was because of her disability.  The Equality Officer accepted that the complainant had a disability falling within the definition in the Acts and that she had established a prima facie case of discrimination.

The Equality Officer noted that the complainant was afforded appropriate measures in accordance with medical advice and when the advice changed the respondent changed its practices.  He could not conclude, therefore, that the respondent had failed to provide appropriate measures to the complainant.  The complainant asserted that the respondent’s suggestion of demotion and lower pay amounted to discrimination.  However, in circumstances where the complainant refused the demotion and reduction in pay and the respondent did not reduce her wages, the Equality Officer did not consider that amounted to less favourable treatment.  He looked favourably on the employer’s attempts to secure up-to-date medical information and referred to Humphries v A Health and Fitness Club, EED037.  The Equality Officer stated that having told the complainant that she should revert to them after a medical visit the employer forged ahead with her dismissal rather than waiting to ascertain what the then current situation was.  On the basis of this the Equality Officer found that the dismissal was “technically tainted by discrimination on the disability ground” and awarded her €1,000.

 Why is this case of interest?

• The Equality Officer clearly indicates in paragraph 5.15 that an employee seeking to rely on the existence of a disability must provide the employer with the information in his or her possession.
• The Decision shows how an employer may appropriately deal with long term absence and consider dismissal without tripping up on the requirement to provide reasonable accommodation or being required to create a role different to that which the employee was employed to undertake.