This is yet another case where the Humphries v Westwood Fitness Club is central to considerations.  The complainant was employed with the respondent since 1997, originally as a driver and later as a sales assistant.  The complainant had to go on sick leave in September 2008 suffering from varicose veins and had three operations after which his surgeon was reluctant to operate again.  On 20 April 2009 his GP stated that the complainant’s condition “would be exacerbated by prolonged periods of standing” and that he was unfit to return to work.

The employer sent the complainant to their occupational health specialist who also found that he was not fit to stand and that this would continue for a prolonged period indefinitely.

A meeting was held on 2 October 2009 the content of which is disputed.  The respondent claimed that they conducted an exhaustive analysis of the options for the complainant to work in a seated capacity.  The Equality Officer stated that he could reach only tentative conclusions as to what was actually said but he concluded that for neither side was exploring reasonable accommodation a priority.  Ultimately, he decided that the discussion on 2 October 2009 did not satisfy the respondent’s obligation to consult with the complainant and on that basis the respondent cannot rely on the defence provided in section 16 of the Acts.

The complainant was awarded €20,000.

Why is this case of interest?

• Be proactive in assessing the situation.  The requirements are well settled since the Labour Court Decision Humphreys v Westwood Fitness Club EED037 and are included in this decision.
  • Satisfy yourself as to the capability of the employee.
  •  Identify if and what special treatment is required.
  • Finally, ensure that the employee is permitted a full opportunity to participate in these considerations.