Background to Complaint
The employee was employed as a general operative from 1993. She went on sick leave in 2004 and did not return to work after that date. Her employment was terminated in 2007.
The employee initially worked in the bakery department but after it was closed she was transferred to clerical work in the purchasing area. She then moved to engineering stores doing stock taking and later was transferred to the chilled food department. At first she worked on the frozen food line which involved lifting up to 25kgs. She then moved to the production line which involved putting food into trays.
She went out sick from work at the end of March 2004 with repetitive strain injury and was referred for physiotherapy. She was also suffering from fibromyalgia. She had an operation for a different complaint in August 2004 and had a baby in July 2006.
Her GP stated she could only work in temperatures of 18 to 20 degrees. The company sought to accommodate her within the area she worked and in other areas of the company which were less cold such as stores but these areas required lifting boxes and her GP said she could not lift heavy weights. Her GP further certified, in addition to the temperature and lifting restrictions, that she was not fit to do shift work.
As the employee could only work in temperatures of 18 to 20 degrees and could not lift weights and could not do shift work, the only areas in the company where she could work were administrative.
The company were of the view that even if her skills were updated the company had no positions to offer her because the company had a restructuring programme and lost 14 staff and management positions.
The company stated that they had no option but to terminate her contract of employment because due the restrictions as regards temperature, weights and shift work because of her medical condition, she could no longer fulfil her contract of employment.
Employees Claim to the Equality Tribunal
The employee claimed that her employer directly discriminated against her on the disability ground in relation to her dismissal after 3 years of sick absence. She also alleged that her employer failed to provide her with reasonable accommodation.
The employee’s case was that her employer failed to provide her with reasonable accommodation in that there was no investigation carried out to find out what appropriate measures could be put in place to accommodate her on the production line or move her to a position within the company which would meet her needs as regards temperature levels, restrictions on weight and shift work.
She said that the company failed to identify her capacity and capabilities and to identify within the employment if a role suitable to her needs existed.
She stated that the company did not carry out adequate enquires with the heads of the department to find her alternative work within the company and the company failed to up-skill and retrain her so that she could work in an administrative area in the company. For these reasons she stated the dismissal was discriminatory.
The employer stated that the decision to dismiss the employee was only taken after exhaustive efforts were made by the company to put appropriate measures in place to accommodate the employee’s needs while she was out of work on sick leave.
The employee, who worked on a production line in low temperatures, could no longer work there because of her medical condition.
The company said that they engaged with the employee, her medical advisers, the company doctor and the occupational health adviser throughout her absence and sought to accommodate her within the area she worked and in other areas of the company which were less cold such as stores but these areas required lifting boxes and the employee could not lift heavy weights.
Her GP certified, in addition to the temperature and lifting restrictions, that she was not fit to do shift work. The employee could only work in temperatures of 18 to 20 degrees and these areas in the company were administrative and even if her skills were updated the company had no positions to offer her because the company had a restructuring programme and lost 14 staff and management positions.
What Steps did the Employer Take?
In July 2004 the employee was seen by the company’s occupational health officer.
She was reviewed again in September 2004 and the possibility of her return to work on reduced hours was discussed. The OH Advisor met with the production manager and HR to discuss the options and it was agreed a three day week would be the best option for the employee.
The employee was informed of the plan to give her shorter hours and light duties and that she was expected back to work in October 2004.
There was no contact from the employee and, sometime after the expected date of return, the employee forwarded a medical certificate stating she would not be fit to return to work until the New Year and that she could not work in a cold environment.
The employee’s GP in a response to a letter from the employer confirmed that the employee could only be exposed to temperatures of 18 to 20 degrees.
The HR department emailed all the department heads to see if any suitable work could be found for the employee given that she could work in a cold environment and she could not lift heavy weights.
All operator roles in the factory were below 10 degrees and any roles identified in production which were higher than 10 degrees involved heavy lifting and was also chilled and consequently no suitable position could be found for her.
The employee attended the company’s occupational physician again in February 2005 and it was his opinion that her condition had improved and she was anxious to return to work.
The OH Advisor invited the employee into the factory to do a tour and to identify any roles which she considered would be suitable. They did a virtual tour and talked through all the areas in the company and identified a number of areas which were office based and which would be suitable given her medical condition.
HR then emailed all the department heads again. There were no vacancies in any of the office based roles and the employee together with her union representative were called to a meeting with her manager and HR and advised of this.
The employee was attending physiotherapy and was not able to give a date when she would be fit to return to work.
The employee’s union representative enquired about a post in purchasing which the employee had occupied in the past for a brief period and she was informed that there was no vacancy there and also that a post identified in engineering involved heavy lifting which was not suitable.
The employee’s manager pointed out that he had a number of jobs on the line in temperatures of 8 – 10 degrees and may be suitable if she wore more protective clothing.
The OH Adviser sought the opinion of the employee’s GP about her returning to work on a trial basis in temperatures of 8 -10 degrees but her GP certified her unfit to return and pointed out again that she could only work in temperatures of 18 – 20 degrees.
In June 2005 the HR department again e-mailed the managers of the departments to see if there were any suitable positions available in their teams taking into account the restrictions on where the employee could work. No suitable positions were located.
The employee informed the employer that she was pregnant in March 2006 and that her baby was due in August.
The employer had meetings with the employee in April and May 2006 about returning to work but the employee’s GP could not certify her fit to return to work. At these meetings and in letters, the employee was advised that the company could not keep her job open indefinitely. Further meetings were arranged in July 2006 but the employee informed the company she could not attend until after the birth of her baby.
In March 2007 a meeting was arranged between the employee’s manager and HR and her union representative and a possible return to work was discussed. The employee said that she was willing to return on light duties. It was agreed that the employee could return to work on light duties subject to her GP confirming her fitness and clarification about temperatures the employee could work in and the light duties that she could perform. The employer would put a rehabilitation programme in place for her.
In a letter to the company the employee’s GP confirmed that the weight and temperature restrictions still applied and that the employee was not fit to do shift work either.
Following this report the HR department again surveyed the heads of department again seeking a suitable vacancy for the employee. There were no vacancies which could accommodate her needs.
The employer met the employee and her union representative in April 2007 and again in May 2007 to review progress. The employee was still unfit to return to work because the restrictions in relation to temperature, weights and shift work still applied.
The employer pointed out to the employee that she was on sick leave for 3 years and that the company could not hold the job open indefinitely.
In June 2007 the Production Manager and a HR representative met with the employee and her union representative. The employee was unable to give the employer a return to work date and confirmed that the restrictions as regards temperature, weights and shift work still applied.
The Plant Manager outlined to the employee the unsuccessful efforts that the company had made in trying to find her an alternative position within the company which would accommodate her needs.
The Production Manager informed her that after reviewing the position and taking all the matters into account, including the work restrictions imposed because of her medical condition, he was left with no option but to terminate her contract of employment.
A letter of dismissal dated June 2007 was sent to the employee. She was informed of her right to appeal the decision. The appeal was heard by the Plant Manager and the Human Resources Manager in August 2007 and the decision to dismiss her was upheld
Equality Officer’s Decision
The Equality Officer stated that she was satisfied that the employee was dismissed from the employment for reasons connected with her capacity to perform her job due to her medical condition, which she deemed a disability.
The Equality Officer then had to consider whether the employer failed to provide the employee with reasonable accommodation in accordance with the Acts. The employee disputed that she was provided with reasonable accommodation.
The Act requires the employer to take ‘appropriate measures’, in relation to a person with a disability which includes measures to adapt the employer’s premises and equipment to the disability concerned, the adaptation of patterns of working time, distribution of tasks or the provision of training or resources.
However, the Act is clear that the employer is not required to recruit or promote an individual to a role, to retain an individual in a role, or to provide training or experience to an individual in relation to a role, if the individual is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to the role, having regard to the conditions under which those duties are required to be performed.
Labour Court Test
The Labour Court determination in the case of Humphrey’s v Westwood Fitness Club Determination No. EED037, which was upheld by the Circuit Court set out the test which should be applied to by an employer if they have formed a bona fide belief that the employee is no longer able to perform the duties for which they are employed and stated:
“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, the employer is required to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The Act 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.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”
The Circuit Court stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the employee’s own doctor or an independent doctor where there are concerns in relations to the health of a worker.
In relation to the first part of the test which requires the employer to obtain facts about the employee’s medical condition, the employer in this case had several medical reports about the employee’s medical condition both from her GP and the company’s own doctor and these medical reports stated that she could not work in temperatures below 18 to 20 degrees or lift weights in excess of one or two kilogram’s.
Also, the employer called the employee to a number of meetings with the company where the option of returning to work in the light of her medical condition was discussed.
Thus, the employer appraised himself of the full facts about the medical condition, through reports from the employee’s GP and the company’s own doctor, before making a decision to dismiss her. The employer also gave the employee notice that he was considering her dismissal due to her incapacity.
In relation to the second leg of the above test which relates to reasonable accommodation, the employer made several suggestions about the employee returning to work in the chilled department but her medical condition prevented her working there as all the operator roles were below 10 degrees and she required a temperature of between 18 and 20 degrees.
The company offered her, subject to medical certification, to bring her back to work on a three day week, light duties and a rotational position but the employee’s GP would not certify her fit to return to the positions offered because of the temperature restrictions.
The employer e-mailed all the heads of department on four occasions over the three year period of the employee’s sick leave seeking alternative roles but there were no suitable vacancies except in the production area.
The employee was also asked to do a virtual tour of the company with OH to identify roles which were suitable for her. A number of roles were deemed suitable and she was advised that the position would only be available if a vacancy existed. There were a number of vacancies in these areas over this period but the employee did not have the qualifications or experience required.
Conclusions of the Equality Officer
The Equality Officer concluded that the employer, in the light of the medical reports on the employee’s condition, examined all the options in relation to what appropriate measures could be put in place to allow the employee to return to work in the production area where the temperature was about 10 degrees and could not be changed because of the nature of the work.
The only appropriate measure the employer could put in place was to move the employee from the chilled area to an administrative area where temperatures were between 18 to 20 degrees but there were no suitable vacancies for which the employee was qualified to do.
The Equality Officer stated she was satisfied that there were no appropriate measures that the employer could put in place which could accommodate the employees disability and allow her to return to work to perform the duties which she was employed to do.
She concluded that it was clear that the employee was no longer capable of performing her job in the chilled area of the production line because of her medical condition and she was satisfied that the dismissal of the employee was due to her incapacity because of her disability to perform the work she was employed to do and in the circumstances the dismissal was not a discriminatory dismissal and that the dismissal was lawful.
The above case highlights a text book response by the employer in handling a long-term sick absence situation eventually resulting in the dismissal of the employee. It illustrates clearly the actions which an employer must take in handling cases where employees are out sick on a long-term basis. It illustrates also the need for a consistent, methodical and patient approach by the employer.