The complainant was employed by the respondent since 2007. In 2009 she suffered an accident at work injuring her shoulder. Her usual duties were as a general operative in the warehouse and occasionally she worked in the “clean room” and on a computer printing labels. The complainant was initially allocated duties at the computer station and was subsequently put back to her pre-injury duties. She had subsequent intermittent absences and on her return from one was subject to a disciplinary process.

There was a volume of correspondence between the parties, some being requests for lighter work and others related to H&S. Her GP’s report to the employer resulted in her not receiving any further accommodations.

The respondent asserted that the complainant failed to follow detailed training in respect of her safety resulting in her injury. The respondent contributed to the cost of her physiotherapy and when she returned to work she was retrained in all aspects of the role. A number of alterations were made to her duties to help with her recovery and return to work. However, the employer received notice from the company doctor that the complainant had again ignored a direct instruction, her training and retraining when she lifted a heavy box. At a meeting she was told her behaviour was unacceptable and that the instructions were to protect her health. She was also advised that failure to adhere to the H&S requirements could result in disciplinary action. Minutes of the meeting were submitted to the Tribunal.

Following a visit by the complainant to her own doctor the respondent outlined in writing what the light duties would be and stressed that she should not lift any heavy weights. She was also notified in writing of a phased return to work. Some two months later the respondent asserts the complainant injured herself again while not following agreed procedures which was witnessed by other staff.

The complainant again returned to work in January 2010 and was completely fit to resume all work duties but that lifting 5kg or more would reactivate old injuries. The respondent wrote two letters to the complainant later that month explaining why such accommodation was not possible. “The respondent maintains that in the meantime they continued to manage the complainant’s absence by periodically reviewing the situation, in addition to providing free GP access and along with her physiotherapy sessions and payment for an MRI scan”.

When the complainant was fit to resume in June 2010 following further sick leave the respondent called her to a disciplinary meeting resulting in a verbal warning.

The complainant made two unsuccessful appeals of the warning. Following a period of annual leave the complainant returned to work with a medical certificate from her GP stating she was not fit to engage in manual labour. She was asked to refrain from work until a meeting was arranged with HR who placed her on sick leave until an appointment could be made with the company doctor.

The respondent argued that the period she was certified as fully fit for work did not require any reasonable accommodation. The requirement “no work with lifted arms” rules out even computer work. Although contested by the respondent the Equality Officer accepted the complainant’s injury as a disability. The Equality Officer considered section 16 of the Acts and the Labour Court Determination Humphries v Westwood Fitness [2004]EIR 296.

He went on to find that the respondent was exemplary in how it worked with the complainant at the outset and accepts that the adjusted tasks set the complainant could not amount to employment in the long term. He found that the respondent worked with the complainant in a responsible and diligent manner to identify alternative roles but were unable to do so. He accepted the respondent’s arguments that the administrative roles were not similar work and required a higher level of academic qualifications.

In conclusion he found that:

• 1. The employer established the employee’s capacity,
• 2. Provided the complainant with a full opportunity to participate at all stages, and
• 3. Put in place a number of agreed special treatments before reaching the conclusion that the complainant could not carry out the duties for which she was employed.