The Labour Court recently awarded €16,000 forconstructive dismissal to an employee whose manager refused to allow him toreturn to work after experiencing mental health problems despite the fact hismedical certificate said he was fit to work.
The facts
The case arose from an appeal by the respondentmanager of the initial Adjudication/Equality Officer’s decision, which upheldthe complainant’s claim that he was constructively dismissed.
The employee worked full-time as a barman. Hehad twice attempted suicide and was absent from work for a one-week period inorder to undergo treatment in relation to his mental health. He met with arepresentative of his employer twice during this period of absence to provideupdates on his condition and to seek to organise his return to work. Theemployer asked him to provide a letter testifying that he was “100%sane“. The employee’s doctor provided a letter to confirm he was “fitto return to work“. Despite receiving this letter the employer refused toallow him to return to employment. As a result the employee considered that hewas effectively dismissed.
The law
The Employment Equality Acts 1988 as amended(the “Acts”) prohibit the treatment of one person less favourably than anotheron the basis of nine specific grounds including disability. Disability isdefined as including a condition, illness or disease that affects a person’sthought processes, perception of reality, emotions or judgement, or whichresults in disturbed behaviour. The Acts prohibit discrimination in relation toaccess to employment; conditions of employment; training or experience for orin relation to employment; promotion or regrading; or classifications of posts.
Decision
Having heard both sides, the Labour Courtconsidered the employee’s evidence to be “credible and consistent“having also produced documents confirming his version of events. The LabourCourt held that the employer was evasive with respect to how it handled boththe complainant’s disability and his desire to return to work. The Court foundthat instead of acting out of concern for the employee and trying toaccommodate his disability (which the employer tried to suggest were itsmotivations), in reality the employer had delayed and frustrated thecomplainant’s efforts to return to work.
Accordingly, the Labour Court upheld thedecision of the Adjudication/Equality Officer in finding that the employee wasdiscriminatorily dismissed due to his disability contrary to the Acts andawarded him the sum of €16,000. The Labour Court considered the effect of thediscrimination upon the employee and the circumstances in which he now foundhimself.
Comment
It is generally difficult foremployees to succeed in constructive dismissal cases as they must prove thatthey had no option but to leave their employment. In thiscase, however, given the employer’s failure to allow the employee to return towork, and the obstacles it placed in the way of the employee’s return, such asquestioning a medical certificate which clearly stated his fitness for work, itwas possible for the employee to succeed despite the fact that he had notbrought a grievance complaint in relation to his discriminatory treatment.
The case illustrates the vitalimportance of active engagement with employees who are suffering from adisability to ensure their smooth transition back to work.
Our three top tips foremployers
- Put an appropriate absence management policy in place and make sure all employees receive a copy of the policy.
- Include a provision that says employees may be referred to the company doctor regarding their fitness to return to work.
- Remember that employees returning from a long-term illness or injury should be regarded as having a disability. As such the employee is entitled to reasonable accommodation on his/her return to work, e.g. to be allowed to work part-time initially and gradually build up to full-time work.
Contributed by Catherine O’Flynnand Aedín Brennan
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