A recent Labour Court decision raises concerns for any employers intending to extend the probationary period of employees who have been absent on repeated or lengthy sick leave.
The relevant employee was a prison officer who commenced employment on 7 October 2002, with the unusually long 2-year probationary period then standard for prison officers.
By the time the probationary period was due to expire in October 2004, she had been absent on sick leave for more than 70 days. The probationary period was extended for a further 6-month period during which the employee was absent for another 88 days on sick leave. All medical certificates cited “work related depression” or “work related stress” as the cause of her absence. The employee’s probationary period was extended for a further 6 months, whereupon her appointment was confirmed.
The employee took a claim for discrimination on grounds of disability, stating that she suffered from a depressive illness which fell within the definition of a disability for the purposes of Employment Equality legislation. She argued that the extension of her probationary period meant that she had been subjected to less favourable conditions of employment because of this disability.
The Equality Officer found that the extension of her probationary period was discriminatory, awarding her €8,000, and this decision was upheld on appeal to the Labour Court.
The only issue considered by the Court was whether the employee had actually suffered from a depressive illness, which fell within the definition of a disability for the purposes of Employment Equality legislation. It made no mention of the difficulties experienced by employers where a probationary employee is repeatedly or continuously absent on sick leave. Such employers may need to extend the probationary period to be given an opportunity to assess the employee’s suitability for the position in question but they may fall foul of Employment Equality legislation in doing so, if the reason for the extension is based upon the disability of the employee.
