DISCRIMINATORY DISMISSAL AND DISABILITY

Discriminatory Dismissal and Disability

A recent case of the Workplace Relations Commission in An Employer v An Employee ADJ-00019658 provides guidance on the law relating to discriminatory dismissal and disability. An employee who is dismissed by reason of their disability may submit a complaint under the Employment Equality Acts 1998 – 2015 alleging discriminatory dismissal.  Disability is defined under section 2 of the Employment Equality Act 1998 and has been applied to include a broad range of medical conditions and reads as follows:

“disability” means –

  • the total or partial absence of a person’s bodily or mental functions, including the absence of a part of person’s body,
  • the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
  • the malfunction, malformation or disfigurement of part of a person’s body,
  • a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
  • a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”

In the above cited case before the Workplace Relations Commission, the complainant was diagnosed with depression and a “stress related illness”. The adjudicator was satisfied that the complainant’s medical complaints fell within the definition of a disability as per section 2 of the Employment Equality Act 1998. The adjudicator was tasked with assessing whether the complainant had been subjected to a discriminatory dismissal on the ground of disability.

The Factual Background

The complainant lives with depression and had been prescribed medication. The medication caused the complainant to gain weight which is a “side-effect commonly associated with her medication”. The respondent commented on the complainant’s weight gain on a number of occasions to which the complainant clearly outlined to the respondent that the weight gain was a side effect of the medication that she had been prescribed as a consequence of depression. The complainant alleged that the respondent had belittled and “put the blame on the complainant for things that went wrong in the office for no apparent reason”. The complainant alleged that the treatment she had endured while employed with the respondent left her feeling that the respondent did not want her and that she “was being pushed out”. The complainant’s health began to deteriorate and her G.P. “declared her unfit to work due to stress related illness”. The complainant submitted a medical certificate to the respondent’s office and went on a period of sick leave due to stress that she had suffered as a consequence of the respondent’s conduct.

While the complainant was on sick leave a letter was received from the respondent notifying her “that the complainant’s employment was to be terminated by reason of redundancy”. The complainant was shocked as the possibility of redundancy was never discussed previously. Furthermore, the respondent “did not have the complainant medically assessed. She failed to reasonably accommodate the Complainant and facilitate her return to the workplace. The only steps taken by the respondent was to “terminate the complainant’s employment” upon receipt of a “sick cert”. The complainant outlined to the adjudicator that the respondent had employed a number of additional employees after her and argued that the redundancy was “a sham designed to cover a summary and discriminatory dismissal that took place on the day after the complainant submitted a second medical certificate”. The respondent denied that she knew the complainant was living with depression and denied that “she made any comments about the complainant’s weight” and continued to assert that the complainant’s role had been terminated by reason of redundancy.

The Decision

The adjudicator was satisfied that both the complainant’s depression and stress fell within the definition of a disability as per section 2 of the Employment Equality Acts 1998 – 2015. The adjudicator noted that it was clear from the evidence that the respondent was “on notice that the complainant was suffering from stress related illness upon receipt of medical certificates”. The adjudicator further noted that the respondent proceeded to dismiss the complainant immediately and following upon the receipt of the complainant’s second medical certificate. The adjudicator outlined that it was also clear that no steps were taken prior to the receipt of the medical certificates to begin the process of selecting positions for redundancy. The adjudicator was satisfied that the dismissal of the complainant’s employment was triggered upon receipt of the complainant’s medical certificates and was therefore a discriminatory dismissal on the ground of disability.

Anyone wishing to read the above decision from the Workplace Relations Commission may do so by accessing www.workplacerelations.ie. Should you wish to discuss any of the above matters, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at anthony@collierlaw.ie. Telephone and Video call consultations are available by appointment.