The Labour Court recently awarded €16,000 for constructive dismissal to an employee whose manager refused to allow him to return to work after experiencing mental health problems despite the fact his medical certificate said he was fit to work.
The case arose from an appeal by the respondent manager of the initial Adjudication/Equality Officer's decision, which upheld the complainant's claim that he was constructively dismissed.
The employee worked full-time as a barman. He had twice attempted suicide and was absent from work for a one-week period in order to undergo treatment in relation to his mental health. He met with a representative of his employer twice during this period of absence to provide updates on his condition and to seek to organise his return to work. The employer asked him to provide a letter testifying that he was "100% sane". The employee's doctor provided a letter to confirm he was "fit to return to work". Despite receiving this letter the employer refused to allow him to return to employment. As a result the employee considered that he was effectively dismissed.
The Employment Equality Acts 1988 as amended (the "Acts") prohibit the treatment of one person less favourably than another on the basis of nine specific grounds including disability. Disability is defined as including a condition, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement, or which results in disturbed behaviour. The Acts prohibit discrimination in relation to access to employment; conditions of employment; training or experience for or in relation to employment; promotion or regrading; or classifications of posts.
Having heard both sides, the Labour Court considered the employee's evidence to be "credible and consistent" having also produced documents confirming his version of events. The Labour Court held that the employer was evasive with respect to how it handled both the complainant's disability and his desire to return to work. The Court found that instead of acting out of concern for the employee and trying to accommodate his disability (which the employer tried to suggest were its motivations), in reality the employer had delayed and frustrated the complainant's efforts to return to work.
Accordingly, the Labour Court upheld the decision of the Adjudication/Equality Officer in finding that the employee was discriminatorily dismissed due to his disability contrary to the Acts and awarded him the sum of €16,000. The Labour Court considered the effect of the discrimination upon the employee and the circumstances in which he now found himself.
It is generally difficult for employees to succeed in constructive dismissal cases as they must prove that they had no option but to leave their employment. In this case, however, given the employer's failure to allow the employee to return to work, and the obstacles it placed in the way of the employee's return, such as questioning a medical certificate which clearly stated his fitness for work, it was possible for the employee to succeed despite the fact that he had not brought a grievance complaint in relation to his discriminatory treatment.
The case illustrates the vital importance of active engagement with employees who are suffering from a disability to ensure their smooth transition back to work.
Our three top tips for employers
- 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.