Right to Return to Same Role After Prolonged Absence
Background to Complaint
This is an appeal by the company against the decision of the Equality Tribunal which found that there had been discrimination on the disability ground and ordered the “Workers” reinstatement without loss of pay and €20,000 in compensation for the effects of discrimination.
The “Worker” worked as a Nurse Manager for the company and commenced sick leave in October 2002.
At this time, the company assigned the “Worker’s” administrative duties to an existing staff member and hired a part-time nurse to carry out her nursing duties.
In October 2003, the “Worker” indicated her intention to return to work and both her Doctor and the Company agreed that this should be on a part-time basis initially; however, negotiation took place in relation to the “Workers” proposed return.
In January 2004, the Company indicated that it was not prepared to allow the “Worker” to return as Nurse Manager – instead, it offered her another post with limited management functions at another centre.
By this time the “Worker” had developed a further depression related illness which she claimed was related to these events.
The company appealed to the Labour Court on two grounds:
- What had occurred was not disability discrimination but instead a restructuring whereby the “Workers” post ceased to exist.
- The “Worker” was medically unfit for work and in receipt of disability benefit during the period for which arrears of pay were ordered i.e. the “Worker” should not be entitled to the compensation ordered as she had received sick pay while sick.
Labour Court Finds Discrimination Did Occur
In examining the appeal, the Court highlighted the fact that the CEO of the company had himself also been absent due to illness for a prolonged period, was also temporarily replaced but had been permitted to return to his original role.
As such, the Court concluded that the reluctance to allow the ”Worker” to return to her original job / role was influenced by the realisation that she was now suffering from depression (in addition to her original illness) and that this could have long-term sick leave implications.
However, the court accepted arguments of the company in that the “Worker” would not have been fit for work during the period of loss and had already exhausted her sick pay entitlement.
Accordingly, in lieu of reinstatement with full loss of earnings, it ordered that the “Worker” be re-employed as Nurse Manager of the Centre without loss of service as soon as she was fit to return to work.
Furthermore, the Court increased the award for the effects of the discrimination from €20,000 to €35,000.
In this case, the Labour Court outlined the right of an absent employee, even if for a prolonged period of time, to return to the same job / role as they left.
Case: Alzheimer Society of Ireland v Irene Feore, Labour Court, 2007
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