Two months ago one of our employees, who was in line for a promotion, had a mental breakdown and had to be hospitalised. Recently they have been certified fit to return to work and are due to start next week. The Company is worried that if they are given the promotion they will be unable to cope with the increased workload/responsibility. Would this concern justify refusing them the promotion.

John Jermyn writes:

Refusing the promotion may leave the Company open to a claim under the Employment Equality Acts 1998 (as amended) (“the Acts”). The Acts prohibit discrimination under any of nine grounds including disability. Disability is defined by the Acts as including:

“a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour … and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”

Therefore, it must be accepted that the Employee’s breakdown in this scenario constitutes a disability for the purposes of the Acts.

The Acts place an obligation on employers to take appropriate measures so that employees who have a disability can:

* Have access to employment;
* Participate or advance in employment;
* Undertake training.

The Equality Authority in December 2011 published a leaflet entitled “Equality and Mental Health: What the Law Means for Your Workplace” (“the Leaflet”):

The leaflet provides a useful guide for employers in relation to their obligations regarding employees with mental health issues and the provision of “reasonable accommodation”.

According to the leaflet reasonable accommodation (known in the Acts as “appropriate measures”) can include the following:

* Time off to attend medical appointments;
* Mentoring and peer support within the workplace;
* Consulting with an employee in order to accommodate their return to work;
* Adjusting an employee’s attendance hours or allowing them to work at home;
* Relieving an employee of certain tasks, and substituting other equivalent duties, in consultation with the employee; and
* Provision of relevant training to support the employee to carry out their duties.

An employer is not obliged to put in place measures which would impose a disproportionate burden upon them. Each situation is considered on a case by case basis. Factors which are taken into account include the following non-exhaustive list:

* Cost to the Company;
* Resources available to the Company; and
* Possibility of obtaining funds.

The Courts will deem the Employee in this scenario fully capable if, with appropriate measures, they can undertake the duties involved with the promoted position.

Notwithstanding the above, according to the leaflet, reasonable accommodation does not mean that the Company will have to promote the Employee if he/she does not have the capacity to do the job. However, it cannot be decided that they do not have the capacity without considering whether there are appropriate measures which the Company could take to support the Employee to carry out the required duties.

The Labour Court in A Health and Fitness Club v. A Worker EED037, highlighted the need for an employer to make enquires in order to establish the full facts in relation to the capacity of an employee. The Company in this scenario could establish the full facts by:

* Seeking access to any psychiatric or medical assessments carried out on the Employee; and
* Engage a Doctor or Consultant Psychiatrist to carry out an independent medical/psychiatric assessment.

It is vitally important, when assessing the Employee’s capacity, to afford them the opportunity to participate at each stage of the assessment and allow them to present medical evidence.

If the Employee feels aggrieved by not being offered the promotion then they may take a case before the Equality Tribunal (where they can represent themselves and where costs cannot be awarded against either party), with an appeal for a full hearing to the Labour Court.

The Equality Tribunal investigates complaints which are not resolved by mediation and gives a decision. The decision may be appealed to the Labour Court within 42 days of its issue. The Acts provide investigation powers for the Director and the Labour Court to secure information, interview relevant people and secure documentary evidence. The Acts also provide for the shifting of the burden of proof i.e. it is for the respondent to prove that they did not discriminate against the claimant.

Needless to say, no two cases are identical, and employers should bear this in mind when considering their obligations. As the area of employment equality evolves rapidly, employees should seek legal advice if and when such a situation arises within their organisation.