In the case of Marie O’Reilly v Chadwicks Group (ADJ-00044696), the Complainant brought a successful case under the Employment Equality Acts 1998-2015 (“the Acts”) on the basis that she was discriminatorily dismissed on the ground of disability and the Respondent had failed to fulfil its obligations in relation to providing reasonable accommodation for her disability.
Preliminary Issue: The Adjudicator, Valerie Murtagh, was asked to consider a number of preliminary issues at the outset of the hearing including:
Time limit – The Complainant lodged her complaint on 6th March 2023 meaning the cognisable period for the claim was 7th September 2022 – 6th March 2023. The Respondent stated that the date of dismissal was outside the cognisable period being August 2022. However the Adjudicator agreed with the Complainant that the receipt of the Appeal Outcome on the 7th September 2022 brought her claim within the cognisable period and she had jurisdiction to hear the case.
Facts: The Complainant submitted that she began employment with the Respondent in 1979 at the age of 17, with a six year gap from 1993 – 1999. In 2018 she was promoted to credit controller which was a desk based job. In total, she submitted she had provided 37 years of service to the Respondent at the time of her dismissal.
The Complainant submitted, that in February 2021, she attended hospital for a routine back surgery and expected to return to work after 6 to 8 weeks. However, after the surgery she had paralysis in one leg and dropped foot. She then went out on extended sick leave as her mobility was significantly compromised. It seems, the Respondent informed her in February 2022 that so long as she returned to work in the next few months her job or another job would be available for her as another employee was due to retire in July.
According to the Respondent they arranged for the Complainant to meet with the Company Doctor on three occasions and arranged capability hearings with the Complainant. There was also a reference in the Respondent’s submissions to having requested the Complainant to provide any supporting documentation contrary to the Company Doctor’s opinion/prognosis.
It seems the Company Doctor examined the Complainant in March 2022 and provided a report setting out the hoped progression back to work for the Complainant. The Company Doctor then had a further telephone review with the Complainant on 22nd June 2022. The Report arising out of that review stated that:
“This lady is working hard at trying to regain her mobility and independent, she is quite disappointed with her slow rate of progress but recognises that it is going to take time. Her morning rehab exercises are extremely important and she needs to continue to do these. Unfortunately, she remains unfit for office based work duties, I had previously discussed the possibility of her resuming doing office based work duties, however I believe that such a sedentary role would not be good for her. The role she did in which she was up and down and moving around would be ideal in many ways, but she is not mobile enough or fit enough to resume these duties.”
The Complainant took serious issue with the above passage of the medical report due to the fact that the review was carried out remotely, it does not specify what work she can do and it seemed to move away from the return pathway set out in the Company Doctor’s previous reports.
However, effective from 12th August, 2022, the Respondent, relying heavily on the Company Doctor’s report above, dismissed the Complainant on the basis of capability.
The Complainant appealed the decision to dismiss her. In the Respondent’s letter to her dismissing her appeal and upholding the decision to dismiss they stated “In your most recent occupational health assessment, the physician further stated that you were unfit for a sedentary role and unfit for a role in which you are required to be mobile”. The Complainant contested this as not being accurate as the Company Doctor never found that she was “unfit” for a sedentary role. By the time of the hearing, the Complainant was in possession of a report by her Nuero-surgeon who was familiar with her disability and progress. He confirmed that with reasonable accommodations she could return to work.
Decision: The Adjudicator found that the Complainant’s back injury met the definition of disability under Section 2 of the Acts. The Adjudicator considered reasonable accommodations under Section 16 of the Equality Acts and relevant case law including the Supreme Court Judgement in Nano Nagle School v Daly 2019 IESC 63 which confirmed:
“Section 16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden.”
“full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures”
“the words of section 16(3) provide that a person will be seen as fully competent if they would be fully competent on reasonable accommodation”
The Adjudicator also cited a number of other cases including Humphrey’s v Westwood Fitness Club EDD037:
“At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee’s condition… In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions”.
The Adjudicator cited Government Department v A Worker ADE 0516, where the Labour Court held:
“The duty placed on an employer by section 16(3) includes by implication, a requirement to make a proper assessment of the situation before decisions are taken which may be of detriment to the disabled employee… This necessarily involves discussing the matter with the employee or their medical advisors.”
The Adjudicator referred to Bolger M., Bruton C, and Kimber C. Employment Equality Law (Second Edition) as summarising an employer’s duties under law as follows:
“In summary, the case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment).”
Finally, addressing the possibility of ‘unconscious or inadvertent discrimination’ the Adjudicator cited the Labour Court Judgment in A Technology Company v A Worker EDA0714 as follows:
“The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.
The Adjudicator found that the Respondent in this case did not carry out a thorough assessment in relation to the needs of the complainant. She further found that there had been an over reliance and misinterpretation by the Respondent of the Company Doctor’s report. She agreed with the Complainant that the Doctor did not state she was unfit for a sedentary role. She found that the Respondent had misquoted the Company Doctor’s report in an attempt to justify its decision to terminate the Complainant’s employment and that the Company Doctor did not state in any of his reports, contrary to the Respondent’s assertion, that the Complainant was unfit for a sedentary role.
The Adjudicator specifically noted in her decision that at one of the Complainant’s meetings with the Respondent the Complainant had stated that she asked the Respondent had they engaged with her own doctor. Furthermore, the Adjudicator noted that the Complainant further stated she had given consent to the Company Doctor to consult with her treating Physician (i.e. her neurosurgeon).
Notwithstanding that the report of the Complainant’s neurosurgeon post dated the dismissal, the Adjudicator confirmed she was very cognisant of it and noted its conclusion that the Complainant could have continued in her employment if she had been provided with reasonable accommodation.
The Adjudicator further noted that the final report of the Company Doctor was based on a consultation “by phone” and it stated that he would like to review the Complainant again in 3-4 months. Notwithstanding this the Respondent dismissed the Complainant due to capability. The Adjudicator indicated that she found this decision “stark” given the consultation was by telephone and further the report does not consider what work/duties the Complainant would be capable of performing had reasonable accommodations been considered.
The Adjudicator was critical of the Respondent for not having considered a hybrid role or working from home as a modification to the Complainant’s existing role.
She was also critical of them for not having fulfilled specific assurances they had given the Complainant in terms of assessing her for suitability for other roles.
The Adjudicator held that the complaint was well founded as the Complainant had successfully raised a prima facie case of discriminatory dismissal which the Respondent had failed to rebut. Therefore, the Respondent was ordered to pay the Complainant €60,000 compensation being the equivalent to 1 year and nine months’ salary. In doing so the Adjudicator cited Von Colson “the award should be dissuasive and proportionate”. She further ordered the Respondent to review its policies and ensure they are compliant with equality legislation.
Takeaway for Employers: Employers should proceed with significant caution before terminating an employee’s employment in a situation involving long term absence due to a disability.
Employers should be very careful to ensure they are correctly interpreting the medical evidence and also they should be proactive in considering the forms of suitable reasonable accommodation which could apply to the employee in order to enable them to do their role.
Furthermore and as this case also demonstrates the employee should be given a meaningful opportunity to put forward their own medical evidence from their own treating doctor particularly where the employee raises concerns with the Company Doctor’s report.
Link – https://www.workplacerelations.ie/en/cases/2024/september/adj-00044696.html
Authors – Nicola MacCarthy and Laura Killelea
23rd October 2024
Anne O’Connell
Solicitors
19-22 Lower Baggot Street
Dublin 2.
If you found this article useful you might like our employment law newsletter. We write monthly articles, like this, covering interesting cases, decisions, news and developments in Ireland.