The recent case of ‘Arravasc Limited v Gerard Cahill’ has provided some clarity regarding what constitutes a disability under equality legislation and is a warning to Employers about how broadly this can be interpreted by the Courts.
In this case, the claimant suffered a heart attack at his home. He submitted a medical certificate covering his absence from work and indicated that it was likely he was to remain on sick leave for another 4-6 weeks. The Company, who believed that it would be hard for them to sustain this period of absence, instructed the agency with whom the claimant had been hired to terminate his employment. The claimant subsequently took a claim under the disability ground of the Employment Equality Acts 1998-2015, alleging that the company had failed to provide reasonable accommodation to him as required by the legislation. In defending the claim, it was argued that a heart attack was not a disability as defined by the Act, and was rather a “once off event” and that it does not automatically follow that a person who suffers such is limited in their participation in work.
However, this was ultimately rejected by the Labour Court and they found that a heart attack was a malfunction at the material time and that it did amount to a disability. The Court clarified that a condition does not have to be long term in nature to satisfy the statutory definition of a disability. The claimant was awarded €42,000 in compensation.
As the definition of ‘disability’ in this Case can be seen to take into account a range of medical conditions, whether once-off, or recurrent, employers must exercise caution when managing absenteeism. When an employee is on a period of sick leave, provided that they are maintaining regular contact through providing certificates then the Company is obliged to hold the employees position for them. The role can be filled on a temporary basis however there is an onus on the Employer to act in a reasonable manner, and an expectation that the employee would be afforded every opportunity to return to their role ahead of considering a termination of employment.
It is important to maintain regular contact with employees who are on sick leave, as if their position is not addressed by the company, then they can choose to return to their position with very short notice once they are fit, and this can be quite disruptive if they have been absent for a substantial period. Additionally, if an employee has been absent, please ensure you seek a ‘fit to return to work’ cert ahead of allowing them to resume their duties.
In order to satisfy their obligations under the legislation, Employers should ensure they take the following steps:
Seek to properly ascertain the nature, extent and likely duration of the employee’s illness and incapacity
Medical evidence should be obtained prior to taking any decision e.g. through an assessment by a doctor / occupational health specialist nominated by the Company
Make every effort to establish how the Company can accommodate the employee’s return to work e.g. phased return to work.
Consider all alternatives e.g. any other duties that the employee can be assigned on a temporary basis.
The employee should be fully involved in the process and ….
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