The recent Labour Court decision in Swan O’Sullivan Accountants & Registered Auditors and Seamus Counihan offers a valuable lesson in relation to discriminatory dismissal claims based on disability.

Mr Counihan (the "Complainant") was engaged as a trainee accountant by Swan O’Sullivan Accountants & Registered Auditors (the "Respondent"). During his probationary period he suffered a seizure and was admitted to hospital. According to the Complainant, he was assessed as having probable epilepsy and was prescribed anti-epileptic medication as a precautionary measure. He spent the following week off work in order to get used to the new medication.

A few months later, the Complainant was dismissed on the basis of poor performance having failed to pass his probationary period.

The Complainant brought a claim for discriminatory dismissal on the basis of disability. His claim at first instance was dismissed by the Workplace Relations Commission ("WRC"). He appealed this decision to the Labour Court. Having heard the evidence of both sides, the Labour Court dismissed the appeal on the basis that the Complainant had not met the "well settled" test in relation to an allegation of discriminatory dismissal. The Complainant failed to establish a prima facie case of discrimination. Therefore "the onus of proving the absence of discrimination" did not shift to the Respondent.

Diagnosed Disability

The Labour Court enquired specifically about the Complainant's alleged diagnosis of epilepsy. The Complainant could not give precise details and told the court that it was a "default" diagnosis following his seizure, and tests had ruled out other possible conditions. The Complainant argued that the diagnosis was obvious from the seizure he experienced and the medication he was prescribed.

Knowledge of the Respondent

The Respondent submitted that it was not aware the Complainant suffered from epilepsy until the matter was referred to the WRC. His absences from work consisted of "a day here or there". On his return to work, and at periodic performance assessments, management expressed concern as to his wellbeing and he told them that he was fine. He never supplied the Respondent with a medical certificate, contrary to his employment contract and repeated requests to do so.

The Complainant submitted that he had discussed his epilepsy and medication with colleagues throughout this period and therefore the Respondent knew of his disability. The Labour Court took the view that this amounted to an assertion by the Complainant that, in the absence of actual knowledge, the Respondent had constructive knowledge of the Complainant's disability. It referred to the High Court judgment in Somers -v- W (1979) IR 94 in which Henchy J stated:

When the facts at his command beckoned him to look and enquire further, and he refrained from doing so, equity will fix him with constructive notice of what he should have ascertained if he had pursued the further investigation which a person with reasonable care and skill would have felt proper to make in the circumstances.”

The Labour Court concluded that the doctrine of constructive notice of the Complainant's disability did not apply in the circumstances. The Labour Court determined that the Complainant had not been diagnosed with epilepsy. At no point had he supplied his employer with a medical certificate nor did he discuss the management of his condition with his manager or colleagues other than to say that the seizure he suffered was a one-off occurrence, and despite queries being made regarding his health he was reluctant to discuss it.

The Court did not dispute that if the Complainant had epilepsy, this would almost certainly have come within the broad definition of disability under the Employment Equality Acts 1998-2015 (the "EEA"). However, the Respondent "could not have had direct or constructive knowledge to indicate" that the Complainant "was suffering from an illness that amounted to such a disability".

Lesson for Employers

Whilst employers should ensure that adequate procedures are in place to manage sickness absence so that it can be shown that information is obtained about an employee's absence, it appears that employers will not be readily fixed with constructive knowledge of a disability in all circumstances. Employees will have to be prepared to overcome the well settled prima facie test in relation to discriminatory dismissal claims.