Could you afford an employment law award of €46,000 against you? Let’s face it you would be hard pressed to just take it on the chin and chalk it down to experience.
But that is what you could be facing if you are at the losing end of a WRC decision as occurred recently in a case involving a claim founded on discrimination.
An office manager in a software firm was awarded €46,000 in compensation by the WRC for her discriminatory dismissal.
The employee who brought the claim had an incurable degenerative disease (fibromyalgia) and was dismissed whilst on sick leave. This disease caused her muscle pain, fatigue, sleep and memory problems.
The €46,000 award comprised 2 parts:
- €23,000 in respect of the actual discriminatory dismissal and
- €23,000 for the failure of the employer to make reasonable accommodation in allowing the employee to continue in her job.
The award took into account the way the employer dismissed the employee: by telephone.
The background to the case is the employee was employed since 2015 and went on certified sick leave in May 2017; in November 2017 she was dismissed by conference call. Whilst she was out sick her occupational therapist made a number of recommendations as to how she could be accommodated in the workplace including:
- Working from home
- More rest breaks
- Flexible working rosters
- A temporary reduction in working hours.
The employee was then involved in a car accident in August 2017 and she was not expected to return to work until January 2018 as she required a spinal implant procedure.
However, in November 2017 she was told by phone that she was being given one month’s notice of dismissal but would be paid in lieu of notice and her termination was, therefore, with immediate effect. The employer mentioned incapacity and “the problems her absenteeism were causing.”
In her evidence at the WRC the employee told that she was not given any warning of her potential termination nor was she given the chance to appeal the decision. The employee was on certified sick leave at the time and was taken aback at the decision which had a significant impact on her from a personal and financial perspective.
She also spoke of the pride she took in being able to work despite her difficulties and she was anxious to show that sufferers from such diseases/disabilities can do things and take part in the workplace.
The employer denied it failed to offer reasonable accommodation and stated it could not hold her position open indefinitely.
Warning for employers
This case is further evidence, if any were needed, that employers need to be very careful about how they deal with their employees, especially when it comes to terminating employment on the grounds of incapacity.
Employers are perfectly entitled to terminate an employee’s job on the grounds of incapacity but only after looking carefully at the options, obtaining updated medical evidence, warning the employee his/her job is at risk of termination, and giving them the opportunity to appeal the decision.
Otherwise, the employer runs the risk of a discrimination-based claim either on the grounds of discriminatory dismissal or straightforward discrimination or failure to make reasonable accommodation for the employee’s continued employment.
- How to deal with employees on long term sick leave
- How far must the employer go in making reasonable accomodation?