This is another disability discrimination case, again concerning dismissal. The complainant worked for the respondent as a canteen worker from March 2000 until June 2009. She had a hip operation after a fall in July 2007, was off work until October 2007 and returned to work initially on a part-time basis before returning to full time hours in February 2008. She went back on disability-related sick leave in February 2009.

In terms of the assessment of her work capability, the Tribunal concluded that the company had followed the correct procedures. She had two medical assessments by the company’s occupational health specialists, the second on 12 May 2009, and one by her doctor. The specialist’s report concluded that the complainant was unfit for heavy manual work and was unlikely to become fit for this in the foreseeable future. It also found her fit for desk based duties or duties which do not require prolonged standing or walking. It also recommended that the complainant be considered for redeployment or early retirement.

However the complainant was dismissed on grounds of incapacity on 2 June 2009, by way of a letter sent by courier. The Tribunal did not accept the respondent’s evidence that an HR manager, who had since left the company, had been in phone conversations with the complainant prior to her dismissal. Crucially, there were no records of such conversations.

The Tribunal relied upon the Labour Court decision in A Health and Fitness Club -v- A Worker (Labour Court Determination No. EED037 - case upheld on appeal to the Circuit Court) on reasonable accommodation and dismissal in disability cases. The Tribunal stated that this case “interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.”

Here, the Tribunal was satisfied that there had been no consultation with the complainant and therefore no input from her on what reasonable accommodation might be made.

The complainant went on to complain that her dismissal had been brought about to prevent her applying for a redundancy programme which was introduced shortly after she was dismissed. Despite ‘early retirement’ being mentioned in the medical report and despite evidence from a former co-worker that a redundancy programme was commenced in the month after her dismissal, the Tribunal concluded that there was ‘no evidence’ of a connection between the two.

The complainant was therefore awarded €8,000 in compensation for discriminatory dismissal.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-109-Full-Case-Report.html