Ireland: Employee Incapacity – How Do I Handle It?

Last Updated: 13 June 2019
Article by Jennifer Cashman

Our organisation has just become aware that one of our employees has a medical condition which we believe makes them unsuitable to work in our particular working environment. Our view is that we should terminate this employee's contract. How do we handle it?

The first consideration for employers who face this type of situation is the potential for a disability discrimination claim, under the Employment Equality Acts 1998-2015, by an employee whose employment is terminated due to incapacity. Whilst section16(1) of the Employment Equality Acts provides that an employer is not obliged to retain an employee who is not fully competent and capable of doing the job he or she is required to do, termination can only be justified where the employer has made sufficient enquiries as to the extent of the employee’s condition and due consideration has been given to any reasonable accommodations that could be put in place to render the employee capable. The employee must also be informed that their dismissal is being considered due to their incapacity. 

As such, there is always an onus on employers to make full enquiries regarding all the material facts concerning an employee’s condition, and the employee should also be given fair notice that dismissal for incapacity is being considered. Consideration should also be given to any reasonable accommodation that could be made available to help the employee to become fully capable.

Therefore, an employer should, in the first instance, seek a report on the employee’s fitness for their role from their doctor and/or send the employee to an Occupational Health Specialist. Failure to do so can be fatal to the employer’s defence to any disability discrimination claim. When referring the employee for medical review, it is important to provide the medical advisor with a detailed description of the employee’s normal day to day duties. This may be very different from the job description which was originally drafted when the role was being filled. In order for a medical adviser to determine whether an employee is actually fit to carry out their role on a day-to-day basis, it is important for that medical adviser to know exactly what the person is required to do on a day-to-day basis.

It is also very important that employers ask the medical adviser the right questions. In that regard, some questions that are likely to be relevant in this scenario are as follows;

  • Is the employee capable of performing the duties and discharging the responsibilities set out in list of duties? 
  • Is a consistent return to work achievable?
  • Is this employee suffering from a condition which is likely to reoccur?
  • Is this employee fit to work a normal working week associated with the role and to carry out workload of a full time person within those hours?
  • Is this employee capable of having company policies and procedures applied?

Upon receipt of the medical report, employers must beware of the trap of being alleged to have improperly influenced the medical opinion. In that regard, employers who do not like the answer they have received from their medical adviser should not seek to influence the medical adviser to change their opinion. To mitigate against the risk of getting medical advice which is based on incomplete or inaccurate information, it is vital that the employer has given the medical adviser all relevant information in advance of the medical review to make sure that the medical report produced is based on accurate and complete information.

From a data protection perspective, employers must inform the employee of the purpose of the medical assessment in advance. It is very important for employers to be aware that any briefing letter, or documents provided, to the medical adviser will constitute personal data of the employee and the employer will be required to release that data under any subject access request subsequently made by the employee under the data protection legislation. Therefore, do not state anything in your briefing documentation to your medical advisor that you would not be happy for your employee to read!

Once the medical report is received, the employer should provide the employee with copy of the medical report and arrange a meeting with the employee to discuss the report. At the meeting, the employer should involve the employee in the consideration of any reasonable accommodations suggested by the medical advisor and should also invite suggestions as to reasonable accommodations from the employee. Upon receipt of feedback from the employee, the employer may need to revert to their medical adviser for further advice around any reasonable accommodations suggested by the employee.

Throughout the entire process, the employer should write to or email employee regularly to summarise steps taken. Constant and clear engagement is a key part of an employer’s defence.

In terms of consideration of reasonable accommodations, Section 16 of the Employment Equality legislation also obliges employers, subject to it not being a disproportionate burden, to take appropriate measures to enable a disabled carry out their position. It is important to note in this regard that the legislation does not require employers to retain a disabled employee in a position where the employee is, despite such measures being taken, not “fully competent to undertake and capable of undertaking” the duties of that position.

Appropriate measures”, in relation to a person with a disability means;

  1. effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned, and,
  2. includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources,

but does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.

Some examples of reasonable accommodations are;

  • Changes in communication
  • Schedule modifications
  • Job modifications
  • Physical environment modifications
  • Part time work
  • Phased return to work

The issue of how far does an employer’s duty go to make reasonable accommodations is the subject of a long running disability discrimination case, Daly v Nano Nagle, which was heard before the Court of Appeal in February 2018 and which is currently in considered by the Supreme Court on appeal. In the Court of Appeal, an employer’s statutory duty to reasonably accommodate disabled employees and what this entails was clarified. The Court found essentially that the obligation does not extend to requiring an employer to employ a person in a position if they are not able to perform the essential duties of that position. Watch this space, however, as the Supreme Court decision may further clarify an employer's legal obligations to provide reasonable accommodations to a disabled employee.

Employers should retain records of efforts to consider reasonable accommodation – reduced hours, duties, working from home, alternative roles etc. It may also be that an employer should carry out an ergonomic assessment. Employers should retain detailed evidence on the cost of accommodation and the financial circumstances of the employer and should keep in mind the UK Code of Practice in this area, which sets out that employers should spend at least as much on reasonably accommodating a disabled employee as it would cost the employer to recruit and train a replacement.

Where, in light of the medical advice received, termination is being considered, the employer should write to the employee in advance of any meeting at which termination is to be discussed, advising them this is something which is being considered  and recapping on steps taken. Employers should not make a decision on termination without having adjourned the meeting to take time to consider and (if necessary carry out further enquiries into) the employee’s suggestions. Employers should always provide right to appeal against any termination decision.

Conclusion

It is important that employers follow the advice set out above when considering the termination of employment of a person suffering from a medical condition which could constitute a disability. It is also worth mentioning that the Workplace Relations Commission, which hears cases of alleged discrimination under the Employment Equality legislation, has also previously noted that an individual may suffer discrimination not because they are disabled per se, but rather because they are perceived to be less capable or dependable than a person without a disability, because of their disability, and as such it was important to always be alert to the possibility of “unconscious or inadvertent discrimination.” 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions