A salutory warning for employers of the necessity for a non-discriminatory return-to-work policy for staff.

One employee was awarded €16,000 after his employer asked for a letter to confirm he was “100% sane”.

An employer refused to allow an employee return to work even though the employee’s doctor had deemed him fit to return.

The Labour Court found that the employee was constructively dismissed on grounds of disability. The decision reinforces the requirement that employers must have a comprehensive return-to-work policy.

In this case the employee had worked full-time as a barman in the employer’s premises for over four years. In 2012, he attempted suicide twice. He underwent treatment and was out of work for approximately one week. Before returning to work he was asked by his employer to produce a letter confirming that he was “100% sane”. His doctor refused to provide a letter in these terms but did provide a certificate stating that the employee was fit to return to full-time work.

The employer, however, refused to allow the employee to return on this basis. The employee interpreted this as a dismissal.

The Labour Court on appeal from the Equality Tribunal noted that the evidence of the engagement between the parties was “clouded in claim and counterclaim” but, on balance, the court favoured the employee’s version of events.

The court was satisfied that the employer was aware the employee was suffering from a disability. It accepted the employer’s concern over the employee’s ability to return to work, given the challenging nature of the working environment. However, it condemned the employer’s failure to take any positive steps to facilitate the employee’s return to work.

The court concluded that the employee had been dismissed in a discriminatory fashion on grounds of disability. It upheld the equality officer’s decision and actually increased the award for discriminatory dismissal from €12,000 to €16,000.

Warning for employers

Employees usually face significant hurdles in order to successfully claim constructive dismissal. In general, they are required to exhaust internal grievance procedures before resigning. The employee in this case was successful in his constructive dismissal claim because even though he had not employed all of the internal grievance procedures, the employer’s requirement for a specifically worded medical certificate was found to be unreasonable.

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