The Adjudicator in this case found that the principles in Nano Nagle in relation to reasonable accommodation did not apply due to the Respondent receiving a letter from the Complainant’s solicitor early in her sick leave objecting to it contacting her while she was on certified sick leave.
Solicitors who send these letters should think twice before doing this where disability and reasonable accommodation is involved.
Facts: The Complainant, Ms Duignan, worked for Lough Rynn Castle Ltd from 2008 until she went on stress related sick leave in March 2017 and remained on certified sick leave at the time of the hearing of this case. Ms Dugnan took a claim that the Respondent’s failure to contact her to ascertain her ability to work or to have her medically examined during a period in excess of 5 years, constitutes a failure to make reasonable accommodation for her disability, being anxiety and depression.
Ms Duignan also lodged a claim of penalisation under the Safety, Health and Welfare at Work Act 2005. She claimed that following her making a bullying grievance against her manager in December 2017, the hotel failed to consider or investigate this complaint before she went on sick leave in March 2018. She contended that the penalisation is a continuing complaint as the Hotel had still not taken any steps to investigate her grievance, which she claims in part of the penalty for raising the grievance.
Decision:
The Adjudicator held that in order for the Complainant’s first claim required three premises to be met in order for her claim to succeed:
1. that the Respondent knew that the Complainant had a disability;
2. that the Respondent knew that the Complainant wanted to return to work; and
3. that the Complainant was fit to return to work and the Respondent was aware of this.
The Adjudicator found that the Respondent was not aware that the Complainant had a disability until she lodged the WRC complaint form on 9 February 2019. She also found that, contrary to the Complainant’s submissions, a sick certificate is not an implied request to return to work. Alternatively, it is medical proof that a person is sick and in the opinion of the doctor, is unable to work because of that sickness. In relation to the third element, the Adjudicator found that the Complainant continuously submitted sick certificates and at no time did either she or her doctor indicate that she would be fit to return to work on lighter duties. The Adjudicator held that the claim was out of time as no indication occurred in the 6 months before she lodged the complaint. However, for clarification, the Adjudicator went on to hold that if the claim was within the time limit, it would not have succeeded as the Complainant’s solicitor wrote to the Respondent on 27 March 2017, when the Respondent attempted to engage with the Complainant, objecting to the Respondent contacting the Complainant while she was on sick leave. This objection did not change prior to the complaint being issued. The Adjudicator therefore held that, in these circumstances, no duty lay on the Respondent to take steps to engage with the Complainant while she was still sick. She found that the Respondent cannot be criticised for complying with the Complainant’s solicitor’s instructions.
In relation to the penalisation claim, this held to be out of time. However, the Adjudicator found that if it was not out of time it would not have been successful due to the Complainant’s solicitor’s letter of 27 March 2017 objecting to the Respondent engaging in an investigation into her grievance while she was on certified sick leave. The Complainant remained on certified sick leave at the date of the hearing.
The renewed discrimination claim was held not to be out of time but interestingly the Adjudicator held that the Respondent was not required to look beyond the medical opinion of the Complainant in circumstances where the Complainant’s doctor has not indicated that she would be fit for lighter duties. On that basis she held that the Supreme Court decision in Nano Nagle did not apply.
Takeaway for the Employers:
Employers should be cautious to rely entirely on this decision as it seemed to be very much reliant on the letter from the Complainant’s solicitor. If that letter had not objected to the Respondent contacting the Complainant these decisions may have been found very differently. The decision that the employer did not have to look beyond the medical opinion of the Complainant is contrary to the decision of the EAT in Majella Long v. Dunnes Stores (Cork) Ltd. I would advise employers to be pro-active in respect of getting the employee medically assessed and in the first assessment ensure to enquire what, if any, accommodations would be required to assist the employee return to work. It is very risky to sit back and do nothing when in receipt of sick certificates.
Author – Anne O’Connell
23rd December 2022