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Incapacity dismissals & reasonable accommodation

In light of a number of recent decisions which made awards against employers and an employment agency for discriminatory dismissal on the ground of disability and the employers’ failure to reasonably accommodate the employee in question, this article sets out the employer’s obligations.

An employer considering terminating an employee who is on long term sick leave should first be able to justify why the business now requires to make such a decision. Regardless of this justification or reason, the employer should then follow a thorough procedure before it can fairly dismiss an employee on the ground of incapacity. An employer should:

  1. Ensure that it is in possession of all material facts concerning the employee’s condition.
  2. Give fair notice to the employee that the question of his/her dismissal for incapacity is being considered.
  3. Allow the employee to put forward his/her input before the employer makes a decision.

An employer should therefore seek a medical report from an independently appointed doctor to ascertain the employee’s incapacity, the prognosis and likely duration of the illness. The employer’s sick leave policy should specify the right of the employer to get an employee medically assessed by a doctor appointed by the employer at the expense of the employer and that the employee consents to the medical report from such assessment being furnished to his/her employer. A copy of the medical report should be furnished to the employee to give the employee and his/her medical advisors an opportunity to consider it. In the event that the employer receives a contradictory medical report, it can either furnish it to the doctor who did the medical examination on behalf of the employer for his/her view or seek a further medical opinion from a different doctor which may involve a specialist. An employer should not take on the role of a medical expert in respect of assessing the illness even if it is involved in that industry.

The employer should ask its appointed doctor to not only address the employee’s incapacity and expected return to work date but to include in his/her report what steps or measures are required to accommodate the employee’s return to work. The employer must then assess such advised/suggested measures and ascertain whether or not they are feasible and that they don’t amount to a disproportionate financial burden on the employer. The Employment Equality Acts requires employers to take “effective and practical measures” where needed so long as it does not impose a disproportionate burden on the employer’s financial resources. Examples of such measures include:

It does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself/herself.

In the case of Nano Nagle v. Daly [2015] IEHC 785 the employee was awarded €40,000 for the employer’s failure to adequately consider or evaluate potential options of reasonable accommodation. This case was appealed to the High Court on a point of law but Judge Noonan upheld the Labour Court’s decision and pointed out that had the employer properly considered the options of reasonable accommodation and then found that no likely return to work date and/or the accommodation was disproportionate then dismissal on grounds of capability may have been appropriate. Judge Noonan also confirmed that the adaptation of the distribution of tasks must also where appropriate include the elimination of tasks since otherwise the section in the Employment Equality Acts would fail to achieve the objective for which the legislation was enacted.

In the case ADJ-00001672 (22 July 2016) the Adjudicator was not satisfied that the employer’s efforts in accommodating the employee to return to work were comprehensive and ordered that the employee return to work for 6 months to engage in direct and meaningful discussions to find a reasonable and definitive resolution and also awarded the employee €15,000.

In the case ADJ-00000187 (10 August 2016) the Adjudicator found that the employer had failed to accommodate the employee not working late shifts on a temporary basis and awarded €17,000 which amounted to 42.5 weeks remuneration for that employee.

In the case of A Store v. A Worker (7 October 2016) the Labour Court awarded the worker €30,000 for the store failing to accommodate the worker in circumstances where she was not fit to work at the bakery but was fit for all other duties.

In the case of ADJ-00003712 (20 December 2016) the Adjudicator awarded the employee €40,000 for failure to fully consider the issue of reasonable accommodation to allow the employee continue in her employment and for discrimination in banning her from eating and drinking in the workplace without any medical evidence to back up this measure.

The obligation on employers to consider reasonable accommodation was highlighted by the Labour Court decisions on 1 December 2016 in the cases of Cahill v. Gregg Labour Solutions Limited (ADE/16/49) and Cahill v. Arravasc Limited ((ADE/16/59). Gregg Labour Solutions Limited was the employment agency who supplied Mr Cahill to Arravasc Limited on a weekly contract. However, following Mr Cahill having a heart attack at home, he took sick leave and was ultimately dismissed by the agency, who was his employer. The Labour Court held both the agency and the end user Arravasc Limited liable for the discriminatory dismissal and ordered the agency to pay €15,000 and Arravasc to pay €27,000 even though Arravasc was not the employer under the Act.

Procedure and proof of having followed the procedure is key in these situations. The employee should be informed in writing at an early stage that dismissal on the basis of his/her incapacity is being considered. Once all the medical information has been gathered, the employee should be requested to attend a meeting with the employer together with a witness/representative and should be informed in advance that the purpose of the meeting is to discuss whether or not the employer can accommodate his/her return to work or whether the employee’s employment will be terminated on the basis of incapacity. The employee should be asked for his/her input in relation to the medical reports and measures to enable his/her return to work. The employer should take time to consider the employee’s input and have evidence that it considered accommodating the employee’s return to work, including the adaptation or redistribution of tasks. The employer’s efforts in considering accommodation will be judged by reference to the size of the organisation and the financial resources available to it.

Once the employer has considered the necessary accommodation required to facilitate the employee to return to work and subsequently determines that such facilitation is a disproportionate burden on the employer, only then should it dismiss the employee. The employer should ensure that a written notice of dismissal that is issued in accordance with the employee’s contract of employment sets out how the employer reached its decision in regard to the facilitation being a disproportionate burden. The employer should ensure to provide for a right of appeal against the decision of dismissal.

It should be noted that if an employer provides its employees with the benefit of Permanent Health Insurance, this policy needs to be considered before a decision is made to dismiss. If the employee would be entitled to payment under the Permanent Health Insurance Scheme but for the dismissal, the dismissal could lead to a breach of contract claim before the High Court or Circuit Court which would be costly to defend.

Anne O’Connell

Employment Law Solicitors

Article dated 12th March 2017

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