In the recent Labour Court case, Mary Doyle Guidera v Dunnes Stores, Ms Doyle Guidera commenced employment in November 2003. From June 2014 until her dismissal in October 2016, Ms Doyle Guidera was unfit for work due to stress and anxiety. In February 2015 Ms Doyle Guidera was referred to the company doctor who certified her as being unfit for work, but stated that with continued care she would make a good recovery. The doctor also recommended that she be kept under review.
Return to work date?
During her sick leave, Ms Doyle Guidera attended a number of meetings with management at which she was requested to provide a return to work date. In August 2016, Dunnes Stores management wrote to Ms Doyle Guidera and invited her to a meeting. In the letter, Ms Doyle Guidera was reminded that she had not provided a return to work date at a previous meeting. She was advised to discuss the matter with her doctor and to bring any medical or other information she wished to be considered at that meeting. Ms Doyle Guidera was advised that her position would be considered at this meeting and that this consideration could lead to a decision to dismiss her.
At the meeting, Ms Doyle Guidera provided a copy of a letter advising that she had been referred to a specialist and that her return to work would depend on the outcome of this referral. Dunnes Stores responded by insisting on being provided with a return to work date and warned that, in the absence of this, her contract would be terminated. Ms Doyle Guidera had not been assessed by a specialist at the time of a further meeting the following month. At this follow-up meeting, Ms Doyle Guidera was asked again to provide a return to work date, but was unable to do so. The manager left the meeting for a brief period and, on his return, advised Ms Doyle Guidera that her employment was being terminated with six weeks’ notice.
In its determination, the Labour Court considered the requirements imposed by section 16 of the Employment Equality Acts 1998-2015 on employers to reasonably accommodate employees with a disability and the nature of the enquiry that had to be undertaken by an employer in order to comply with its obligations under that section. The Court noted that, although Dunnes Stores had made efforts throughout Ms Doyle Guidera’s absence to be aware of her condition, notwithstanding the recommendation of the company doctor in February 2015 to keep her under review, no steps had been taken to do so.
The Court found that in the absence of an impending specialist’s report, which would have allowed Ms Doyle Guidera’s doctor to provide a return to work date, Dunnes Stores was not in a position to objectively evaluate and agree to appropriate adjustments. Certain appropriate adjustments could have been made to her working arrangements to ensure she was capable of continuing to be employed by Dunnes Stores. The Court found that Ms Doyle Guidera had been discriminated against as a result and increased the level of compensation from €15,000 to €30,000.
An employer cannot be expected to hold a position open indefinitely for an employee who is absent on extended sick leave. Where an employer proposes to dismiss an employee on the grounds of incapacity or a disability, however, it is essential that the decision is made based on up-to-date medical advice. Otherwise, the employer may be exposed to claims of discriminatory dismissal or failure to reasonably accommodate the employee.