by Emily O’Sullivan, Associate on the Employment team at Lewis Silkin, Dublin
What happened?
After a review with the Chief Medical Officer, the employee requested a transfer to a new division or to an alternative line manager for the remainder of his probation. This request was refused on the basis that the civil service probation guidelines do not generally allow transfers during probation.
The employee claimed this refusal amounted to disability discrimination. He claimed to be suffering from a disability that affected his mental health and that his transfer request should be seen as a request for a reasonable accommodation which the employer is obliged to provide under the Acts.
The Workplace Relations Commission found that the employee had not disclosed his disability or its nature, and that his medical certificates did not indicate a disability within the meaning of the Acts. The claim of disability discrimination was not upheld.
Did the employee tell his employer about his disability?
At the hearing, the employee claimed he was suffering from work-related stress. His GP gave evidence on his behalf, stating that her diagnosis was that the employee’s symptoms related to anxiety and low mood although she commented that she would never put a diagnosis of this kind in writing. The employee argued that his medical certificates were, in themselves, notification of his disability.
The Workplace Relations Commission accepted that the symptoms described by the employee could fall within the definition of disability under the Acts. However, the Adjudication Officer held that to benefit from legal protections, an employee must notify their employer about both the existence and nature of the disability.
Here, the Adjudication Officer found that the employee did not inform his employer of his disability or its nature until the hearing itself. The Adjudication Officer also noted that the medical certificates did not indicate a disability: “they merely indicate that the Complainant was not fit to work.”
Unwillingness to work vs Incapable to perform the role?
The employer argued this was not a case of someone who could not do the job, rather, it was someone who was unwilling to work with his line manager. The occupational health physician had suggested the main issue was interpersonal difficulties, rather than anything medical, which prevented the employee from returning to work in the same division.
Given the evidence of workplace difficulties and multiple disciplinaries, the Adjudication Officer commented that the case “did not on the face of it seem to revolve around his disability rather it revolves around his unwillingness to work with a named individual line manager.”
Did the employer fail to accommodate?
Under the Acts, reasonable accommodation requires employers to take appropriate measures to enable a person with a disability to access, participate in, or undergo training for employment unless these measures would be a disproportionate burden on the employer. The employee claimed that by refusing his transfer request, the employer failed to provide reasonable accommodations for his disability. The employer relied on section 16(1) of the Acts, which provides:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed,..
Since the employee refused to accept his employment conditions namely, working with his line manager, the employer argued that reasonable accommodations simply did not come into it. The Adjudication Officer agreed and noted that the employee had, on multiple occasions, indicated his unwillingness to do the job or accept the conditions under which it was required to be done.
The Adjudication Officer was not satisfied that the employee had made out his case that the employer failed to provide reasonable accommodation.
Key takeaways for employers
These facts are not unique and employers across all types of workplaces will recognise this scenario.
- Employees may take sick leave close to a workplace process such as a disciplinary or investigation. It will be prudent to confirm whether there is a medical basis for the absence, or whether it relates to an interpersonal or workplace relations issue.
- An employee must disclose a disability before the duty to provide reasonable accommodation arises. Employers need to know both that a disability exists and what it is.
- Being unwilling to do a job or accept certain conditions is legally distinct from being unable to do the job because of a disability and the protections under the Acts do not apply.
- Consulting meaningfully with the employee and occupational health advisors can help you understand the nature of any disability, the support needed, and the medical basis for accommodations.
- Medical certificates may give non-specific reasons like “unfit for work.” Employers seeking more detailed medical information should be mindful of GDPR obligations regarding special category data.
About the author
Emily O’Sullivan is an Associate on the Employment team at Lewis Silkin, based in the Dublin office.
Emily support’s employers on a broad range of contentious and non contentious employment matters and advise’s on day‑to‑day employment law queries as well as more complex workplace issues.
Emily’s work includes supporting employers with claims before the Workplace Relations Commission and the Labour Court, assisting with internal investigations, and advising on redundancy processes. She also has experience drafting and reviewing employment contracts, workplace policies and procedures, and settlement agreements.
