A recent Equality Tribunal finding has seen Marks & Spencer being forced to pay €14,000 to an employee due to discriminatory dismissal. Furthermore, the tribunal has ordered the re-employment of the employee with back payment from July 2010.
The Equality Officer held that the business had failed to take account of the employee's disability and make reasonable accommodations to their role to facilitate them.
The case at hand concerned Donaldson -v- Marks & Spencer (DEC-E/2013/032) where the employee, having been employed since 2006, was diagnosed with a condition called Benign Intracranial Hypertension (BIH) a condition which causes an excess of fluid on the brain.
In March 2005, the employee underwent an operation to put a shunt into her brain which would drain the excess fluid. This condition when untreated can cause blindness.
Background
In May 2009, the employee became very ill and was brought to hospital with stroke-like symptoms. It transpired that the shunt in her brain had twisted into her spine. This required another procedure whereby the shunt was replaced. The employee remained in considerable pain post-operation. She remained off work from this time but was dismissed on June 9th,2010. She submitted medical certificates initially every two weeks and thereafter on a monthly basis citing post-operative difficulties. The employee was also in contact by phone with members of HR on a regular basis during this time.
The business called a welfare meeting in May and indicated that they could not hold her position open indefinitely and requested that the employee provide them with a return to work date by June 8th and that this date should not be any later than June 14th, 2010.
The business argued that it was also agreed that they would consider a request for lighter duties for a period of four weeks but that this request would have to come from her doctor. The employee wrote to the business on June 4th, 2010 indicating that she would not be in a position to return to work on June 14th as per her doctor. The letter stated that her doctor had advised that she should be fit to return to work within a short period, and the business replied on June 9th, 2010, and stating that, as she could not commit to a return to work date as requested, they were terminating her employment on grounds of ill-health.
The business did not accept that the employee has a disability as no confirmation of such has ever been provided. It is also submitted by the employer that the employee never made them aware of this disability either in the course of her employment or in her application for employment. It was submitted by the employee that she is a person with a disability, within the meaning of Section 2 of the Employment Equality Acts.
Definition of Disability
Disability is defined in Section 2 of the Acts as meaning:
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement 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.
The Equality Officer found that at least from May 2010 the employer was aware of the employee's illness and as such recognised it as being a legitimate disability.
Determination
In their determination, the Equality Officer found that "it is the respondent's contention that the complainant was dismissed due to her absence and due to her inability to provide a return to work date of 14th of June, it is clear that the complainant's absence and her inability to return to work by a given date were due to her disability it thus follows that the complainants disability contributed to or was the reason for her dismissal. I am thus satisfied that the decision to dismiss the complainant was influenced by her disability in that it was influenced by her absence and by her inability to return to work by a given date. Accordingly based on the totality of the evidence adduced on this issue I am satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of disability in relation to her dismissal."
The Officer found that the Employer, in this case, didn't make appropriate enquiries to ascertain the extent of the employee's condition and also failed to consult with or advise the employee before coming to the conclusion that they were incapable, on the grounds of her disability, of performing the duties for which she had been employed.
They found that the employee's disability was a factor which contributed to the employer's decision to dismiss her and that the employer failed to provide her with reasonable accommodation. As such the employee was awarded €14,000 and re-employed.
Impact for employers
What's interesting is that the Equality Officer has effectively set out a template for employers on the steps they must take if they wish to dismiss.
"The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources."
Employers should look to educate themselves as to the employees disability as well as gaining a medical opinion by either an independent or the employee's doctor. Then if the employee is not fully capable of carrying out their role, they may have to look at any "special treatment or facilities", taking factors such as cost into account.
Medical dismissal can be a tricky subject and should only be considered where the employers cannot facilitate a phased-return or reasonable accommodations being made for the employee.
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