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Discrimination on the Grounds of Disability – Employers Must consider Reasonable Accommodation

A key issue we are seeing time and time again is the failure of an employer to provide an employee with “reasonable accommodation” when that employee may be on sick leave and may be certified as fit to return to work. In many cases the employee’s GP or doctor may have stated that the employee is fit to return subject to certain steps or actions being taken by the employer.An example of this might be where an employee’s doctor recommends that the employee return part time or on reduced hours to ensure the return is not too stressful for the employee. Naturally this may cause difficulties where an employer is not able to provide reduced hours etc. It is imperative that an employer seeks advice at this stage to ensure they are protected in the event a claim before the Workplace Relations Commission arises.The recent case in September of Assured Personnel Limited and Adam Herzyk highlights the above point. This case concerned an appeal from a decision of the Workplace Relations Commission to the Labour Court. In this case the employee went on sick leave but was ultimately certified as fit to return to work but with lighter duties and not on a full time basis. The employer did not respond to these requests and it was ultimately found that”……it is not disputed between the parties that the Complainant submitted a medical certificate on the 4 December 2017 confirming that he was fully fit for work. The Complainant submits that the unreasonable behaviour of the Respondent in not providing reasonable accommodation and then when he was certified fully fit to work not providing him with work left him with no choice but to resign…”. The employee lost his claim for constructive dismissal but was awarded €10,000 in respect of discrimination on the grounds of disability.

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