by Jenny Wakely, Senior Associate and Nicola MacCarthy, Associate Solicitor & Notary Public at AOC Solicitors
The Complainant in this case brought a claim to the Workplace Relations Commission (“WRC”) under section 77 of the Employment Equality Acts 1998-2015 (the “Acts”) claiming that he was treated less favourably in the course of his employment due to his disability. The less favourable treatment complained of included victimisation, harassment, and failing to provide reasonable accommodation. The Complainant tendered his resignation following his attendance at a medical assessment arranged by the Respondent company, but prior to having sight of the medical report arising therefrom.
In the case of Brian Kiernan v Annix Software Limited t/a Quest Systems, the Complainant had been employed for over 20 years in the Respondent company, a leading technology and office provider. His role initially involved travelling on the road providing technical support for photocopiers and similar items. He was promoted to Technical Support Manager. In 2015, it was agreed that the Complainant should focus on working on the sales floor of the company to concentrate on bringing in further business and maintenance of client accounts. A natural consequence of this change was a drastic reduction in his time spent on the road and in the warehouse and, in fact, the Complainant was expected to inform others if he was to be away from his desk. His role had in essence become a desk job. At the hearing of the case, the Complainant could only identify two occasions between 2015 and 2019 when he was required to assist in installation or maintenance work.
In November 2019, the Complainant was involved in a road traffic accident and sustained significant neck and back whiplash injuries. He was certified unfit to work as he required a back brace and rest. During this time, the Complainant continued to assist as much as possible from home, but was aware that others were filling in and carrying out his duties also. On 29th November, his line manager requested the return of his mobile phone, ostensibly to allow him step away from his work and rest. However, the Complainant’s mobile phone was his personal one and so he refused. The Respondent had all the Complainant’s calls diverted to the office work phone without the Complainant’s consent, resulting in him missing personal and medical calls. Solicitors became involved at this point and a solution to the telephone issue was found.
The Complainant’s sick certs were renewed up to and including 20th February 2020. In response to a request by the Complainant to return to work, the Respondent informed the Complainant that he would be required to undergo an independent medical assessment to confirm his fitness to return if he wished to return to work before 20th February. The email referred to the Complainant’s ability to lift heavy objects.
A health assessment was conducted over the phone and the Complainant was deemed fit to return to work. During the course of the assessment, the Complainant was asked whether he was expected to lift weights of up to 70kg. The Complainant replied that he had not been required to lift such weights for years and noted that it was unlikely that any employee would be required to lift such weights on their own. On 19th February, the Complainant and a member of the Respondent met for what the Complainant believed to be a return-to-work meeting. During the course of that meeting he was told that his duties had largely been absorbed by others or outsourced and the Respondent asked if he would take a financial settlement instead of returning to work. The Complainant was shocked and asked if they did not want him back at work. He was told that they wanted him back, but that he would be required to have another physical assessment as the initial one did not address the manual handling issue.
On 20th February 2020, the Complainant was provided with a proposed settlement agreement. The Complainant rejected the offer and informed the Respondent that he would be returning to work.
The Respondent arranged another medical assessment for the Complainant, but he was not able to attend as insufficient notice had been provided. The Respondent arranged a new appointment, threatening the Complainant with disciplinary action should he not attend. The letter informed the Complainant that, as his certified medical absence had now expired, he was regarded as being absent on “paid suspension”. This had never been communicated to the Complainant whose return to the workplace was prevented by the Respondent’s requirement for him to attend a further medical assessment.
The focus of the second medical assessment was mainly on the Complainant’s ability to lift heavy weights and carry out other manual handling tasks, which the Complainant did not routinely do. It was later discovered that the Respondent company had specifically requested the doctor to assess his fitness for such tasks.
The Complainant argued that the Respondent was using his disability as a means of preventing him from returning to work. The Complainant had been assessed as fit to return to his role which did not include heavy lifting, but the Respondent refused to allow him to return until he attended a further medical assessment, the focus of which was on duties that were not part of his role. The Complainant’s position was that the Respondent was setting him to fail the medical assessment. The Complainant also argued that the Respondent was refusing to consider providing any form of appropriate measures which might be required to enable the Complainant to return to work safely, noting that even if he was required to work in the warehouse at any point, he could simply lift lighter weights and use safety equipment that would facilitate him lifting in a safe manner. The Complainant resigned in circumstances where he believed that he had no alternative.
The Adjudicator was satisfied that the Complainant had a “disability” within the meaning of the Acts. She referred to the medical report which described the Complainant as not fit to return to work where manual handling formed part of his role, but noted that he could return to work if manual handling was removed from his role. The Adjudicator accepted that there was no requirement for the Complainant to carry heavy weights in his day-to-day role which she described as “almost entirely desk bound.”
The Adjudicator found that the Respondent:
“set the Complainant up to fail a medical assessment so that the Respondent could use his disability (which had kept him out of the workplace for three months on bed rest) against him. The Respondent actively sought to use his disability against him and actively set out to bar his return to the workplace.”
The Adjudicator found that the Complainant had been constructively dismissed and was satisfied that he had been left with no alternative but to resign. She noted as follows:
“This was not even a case of refusing to provide reasonable accommodation or take appropriate measures. This was using a disability – weaponizing it – and forcing the Complainant to resign his position where no alternative was open to him.”
The Adjudicator referred to the timing of the Complainant’s resignation, which predated him having sight of the second report. She noted that, while the timing might suggest that his resignation was premature, the report “said exactly what he anticipated it would say”. The manner in which the Complainant was interviewed by the doctor made it clear to him “that the Respondent employer was moving in one direction only”.
The Adjudicator awarded €58,000 in compensation for discriminatory constructive dismissal.
Takeaway for Employers:
An employer should be able to demonstrate that it made genuine efforts to assist an employee returning to work following a period of absence. Employers should pay particular attention to employees who may be suffering from a disability, the definition of which is broad. An employer has an obligation under the Acts to take reasonable steps to accommodate the requirements of employees with disabilities. “Reasonable accommodation” refers to changes to an employee’s tasks, job structure, or workplace that enable an employee to carry out his/her role. Employers should be guided by medical professionals as to what changes may be required for a particular employee to return to the workplace. This case demonstrates that the WRC will be critical of attempts by an employer to misrepresent the true nature of an employee’s role when seeking a medical assessment regarding his or her fitness to work and/or reasonable accommodation requirements. The WRC will take a dim view of any attempts to misrepresent an employee’s role and responsibilities so as to influence the outcome of a medical report regarding an employee’s fitness to work.
Employers should also note that it is always advisable to engage with employees who resign amidst issues regarding their employment to see if they might reconsider their resignation. Failure to do so in this case reinforced the WRC’s view that the Respondent wanted to force the Complainant out:
“It is worth noting that the general silence emanating from the Managing Director was somewhat surprising given the length and loyalty of service given by the Complainant to this workplace. A curt letter dispatched after the resignation certainly didn’t try and persuade the Complainant to not tender his resignation.”
About the author
Jenny Wakely qualified as a solicitor in 2012 and holds a first class LL.B and LL.M. She specialises in Employment Law and joined the AOC Team as a Senior Associate in September 2021.
Jenny has worked with a broad range of employers in Ireland and abroad as well as with major insurers and private individuals. Her work encompasses all aspects of non-contentious and contentious employment law and related litigation. She advises clients in respect of all matters relating to the employment relationship, from recruitment to termination, and everything in between. Jenny also regularly drafts and reviews contracts of employment and employee handbooks and policies. She also advises employers on data protection matters and assists employers in responding to complex and wide-ranging data subject access requests.
Jenny is a member of the Employment Law Association of Ireland. She frequently writes on employment law related matters.