The  recent case of A Shop Assistant v A Hardware and Tool Hire Store is very useful for summarising the law where an employee is absent on sick leave. The employee in this case made complaints in respect of bullying at work but was ultimately dismissed for failing to provide a medical certificate in respect of his absence from work. The case serves as a stark reminder to employers to manage an employee’s illness related absence properly as failure to manage this properly in this case cost the employer two year’s salary.

The Adjudicator in this case noted “…..In dealing with absences, communication is key, and maintaining contact with an absent employee is crucial in this regard. I found the letters from the Respondent to the Complainant fell well below the standard of reasonable behaviour / communication between and employer and employee. There was no regard to the Respondent’s own staff handbook and its disciplinary procedure. Aside from the above, the termination of the Complainant’s employment was procedurally flawed and in breach of the provisions of the Code of Practice on Grievance and Disciplinary Procedure (S.I. No. 146 of 2000)”.

The Adjudicator went on to state

“At a minimum before the decision to terminate the Complainant’s employment took place, he should have been again assessed by the Respondents doctor, to determine his fitness for work and whether his condition was likely to remain or reoccur in the foreseeable future. A return to work meeting should be arranged with the Complainant and the situation discussed with him.   The situation should be kept under review and managed conservatively. It may ultimately have been the case that the Complainant did not have the capacity to undertake his role and dismissal may have occurred. However, any dismissal for incapacity needed to be examined in a structured way, relying heavily on medical advice and consultation with the employee. To be able to make a decision to terminate the Complainant’s employment, the Respondent needed to be in “full possession of all the material facts” concerning the Complainant’s condition. Humphreys v Westwood Fitness Club [2004] (ELR296, 300)”

The Adjudicator found that the employer had discriminated against the complainant employee on the grounds of his disability contrary to Employment Equality Act and the Respondent failed to adequately discharge the duties imposed upon it by the Act at Section 16 i.e. to provide reasonable accommodation in respect of that disability. He concluded

“I find that compensation is the most appropriate form of redress in the circumstances of this case. In accordance with the case of Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891, I am mindful of the requirement that the sanction be “effective, dissuasive and proportionate.”  In accordance with my powers under section 82 of the Employment Equality Acts, I hereby award the Complainant €52,000 by way of compensation for breaches of the Act which represents two years’ salary”.