A recent decision of Workplace Relations Commission¹ (the “WRC”) underlines the importance for employers of properly managing dismissals on the grounds of an employee’s incapacity to work. Equally, where it is apparent that the real reason for a dismissal is an employee’s perceived incapacity, the WRC will not look favourably on an employer contriving performance or disciplinary issues in order to justify terminating employment.

Background
The complainant was employed by a large wholesale book company as a Regional Account Manager in April 2013. The company was based in the UK and the complainant was the company’s sole employee in Ireland. He was ultimately dismissed in June 2013, ostensibly for performance and disciplinary issues, while still on probation with the company.
The complainant brought a claim to the WRC on the basis that he had been subjected to a discriminatory dismissal on the grounds of disability.

Suffering from Stress/Reactive Depression
The complainant went on sick leave a month into his employment with the company, and furnished a medical certificate indicating that he was suffering from stress. The Personnel Manager called him to discuss his absence from work and in the course of the conversation asked him directly what medication he was on. Although he regarded the question as intrusive he felt obliged to comply and stated that he had been prescribed Zyban, an anti-depressant. The complainant returned to work after a week. The company did not have him medically assessed on his return.

Disciplinary Process and Dismissal
Some weeks after his return the complainant lost his company laptop while on annual leave. He did not immediately report the loss to the company. The day after he reported the loss, the complainant received a call from the Sales Director and Personnel Manager. The complainant had initially understood the call was to be about sales targets, whereas in reality it was a disciplinary call/process, and at this point he was asked if he wished anyone to accompany him. He had nobody available. The issues raised on the call included:

  • the complainant had not signed his contract;
  • the late reporting of the loss of his laptop;
  • failure to notify the company in line with relevant procedures that he was taking sick leave;
  • failure to email the Personnel Manager with the name of his medication;
  • not replying to email and voicemails from his line manager;
  • not updating his voicemail message on his return from holidays;
  • poor quality and late delivery of sales reports; and
  • not contacting the previous Regional Account Manager for Ireland, as he had been instructed to do.

The complainant was dismissed at the end of the call. He was not provided with notes of the call. A record of the call produced by the company at the hearing documented that the complainant had started crying during the phone conversation and that he said he was depressed. The complainant appealed his dismissal internally and the appeal was heard over Skype some two months after his dismissal. He informed the manager hearing the appeal that he considered the company’s attitude to him had changed following his period of sick leave. His appeal was unsuccessful.

Dismissal for Incapacity
Although the company did not in any manner call, or relate the complainant’s dismissal to incapacity, the WRC stated that the reality indicated that this was the case. While the complainant’s sick leave and depression were not the only reason for his dismissal, his disability was nevertheless a significant factor in his dismissal.
The WRC also noted that an individual may suffer discrimination not because they are disabled per se, but rather because they are perceived to be less capable or dependable than a person without a disability, because of their disability, and as such it was important to always be alert to the possibility of “unconscious or inadvertent discrimination.”
The WRC noted that the company’s attitude to and treatment of the complainant changed after he informed them of the medication he had been prescribed. The company should have maintained a sense of perspective in relation to the loss of the laptop and the complainant’s notifying the company of the loss, albeit that the loss should not have occurred. The WRC believed that the complainant would have been given a final chance in this regard, and in relation to informing the company of his sick leave, had he not declared his psychiatric illness a month earlier.

The WRC deemed the other performance issues noted by the company to be relatively minor. There had been no complaints from customers, and it was acknowledged the complainant had increased sales in his time in the role.
The WRC considered that the company had driven “a coach and horses through fair procedures” and that fair procedures equally had to apply to dismissals during probation. In particular the complainant:

  • was not warned his job was in jeopardy;
  • was not provided with notes of the disciplinary meeting;
  • was not offered an opportunity for somebody to accompany him;
  • was not afforded the opportunity to give his side of the story;
  • was dismissed by phone with a letter sent a day later reiterating the position; and
  • although he was offered an appeal, this did not happen for a further two months at which point it was highly unlikely that the company would take him back.

In the view of the WRC, a written warning would have been a more reasonable response, especially where the company was on notice of the complainant’s disability. The WRC was also critical of the company for appearing to have retrospectively drafted a letter purporting to be an invite to the disciplinary meeting/call that resulted in his dismissal. The complainant said he had never received this letter and the WRC was satisfied that it had been drafted to “fix the file” and to “make it appear that fair procedures were applied.”

Reasonable Accommodation
Addressing the fact that the dismissal was in reality on the grounds of disability, the WRC acknowledged that section s.16(1) of the Employment Equality Acts 1998 – 2011 provides that an employer is not obliged to retain an employee who is not fully competent and capable of doing the job he or she is required to do. However, this has to be read in conjunction with s.16(3) where it must be considered whether the person would be fully competent and capable if reasonable accommodation is provided for them.
As such, there was an onus on the company to make full enquiries regarding all the material facts concerning the complainant’s condition, and he should have been given fair notice that his dismissal for incapacity was being considered. Consideration should also have been given to any reasonable accommodation that could have been made available to help the complainant become fully capable.
The company did not seek a report from the complainant’s doctor or send him to an Occupational Health Specialist, even though they were on notice he was suffering from a psychiatric illness. No consideration was given to what accommodations could be provided – the WRC cited extending his probation as one possible option.
Taking the foregoing into account, and while acknowledging that the complainant was not a perfect employee, the WRC awarded the complainant the sum of €18,000, equivalent to six months’ wages.

Conclusions
While it is permissible to dismiss an employee on the grounds of incapacity, this can only be done where the employer has made sufficient enquiries as to the extent of the employee’s condition and due consideration has been given to any reasonable accommodations that could be put in place to render the employee capable. The employee must also be informed that their dismissal is being considered due to their incapacity.
The WRC will also not look favourably on a dismissal for incapacity disguised as a performance or disciplinary matter.
Additionally, employers should also be mindful of how to approach the dismissal of employees during probation. While truncated disciplinary procedures can be applied, where same are provided for in contracts and/or handbooks, employees on probation are still entitled to fair procedures.

¹A Sales Representative v A Book Wholesaler DEC-E2016-131