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Ireland: Non payment of sick pay found to be discriminatory on the grounds of race

17 September 2020
In the case of User Interface Designer v Engineering Company, ADJ-00023614, the Claimant, a Croatian national, alleged that she was discriminated against by reason of her race and disability in relation to her terms and conditions of employment and her subsequent dismissal.

The Claimant's position

The Claimant was diagnosed with breast cancer and notified the Respondent of her diagnosis in December 2018.

The Claimant was facilitated to work from home from 7th January 2019. However, on the 18th February 2019, the Claimant notified the Respondent that her chemotherapy had caused high blood sugar levels which made her feel ill.She said that she could not work that that week and asked about sick leave. The Respondent responded that the Claimant would not be paid while on sick leave and that she should apply for state illness benefit. The Claimant applied for and obtained illness benefit around the end of February 2019.

Due to the terminal nature of her condition, the Claimant decided not to press the issue with the Respondent at the time. However, she was surprised that the Respondent did not contact her to discuss the possibility of part time work. She was also surprised by the Respondent's attitude in relation to sick pay, as she had been paid for 3 or 4 sick days previously.

The Claimant submitted that she was treated less favourably on the grounds of her race than her Irish colleague, MC, who had received full pay during a period of ill health from August to December 2018.

The Claimant also alleged she was discriminated against by reason of her disability and she claimed the Respondent failed to reasonably accommodate her, by allowing her to continue to work remotely on a long term basis. The Claimant accepted that she told the Respondent she was not fit to work on the 19th February 2019, however, she claimed that the Respondent had an obligation to probe further about her ability to work.

The Claimant also alleged she was discriminatorily dismissed in August 2019, when her employment was purportedly terminated by reason of redundancy. The Claimant argued that she had been discriminated against when she was denied the same treatment as her peers in relation to the redundancy consultation process. Unlike her abled-bodied colleagues, the Claimant did not receive the "at risk" letter issued to her colleagues at the time, and she was not invited to any 1:1 consultation meetings. The Respondent did however, write to the Claimant on the 18th July 2019 acknowledging that she had not been made aware of the possibility of redundancy beforehand, because she had been on sick leave and claimed this was an oversight.

The Claimant also submitted that she was discriminated against because she was dismissed whilst on unpaid sick leave.

The Respondent's position

The Respondent submitted that in or around December 2018, the Claimant made it aware that she had been diagnosed with breast cancer and it agreed that the Claimant could work from home for a period of time, to allow her to attend medical appointments.

The Respondent submitted that no other employee had ever been paid while on long term sick leave and it sought to rely on a provision of the Claimant's contract which stated that any payments of salary made during periods of sick leave were discretionary.

The Respondent claimed that the Claimant had, at all times, been treated the same as all other employees. The Respondent claimed that it acted in accordance with the Claimant's terms and conditions of employment and exercised its discretion, as was its contractual right.

In evidence, the General Manager refuted the argument that the Claimant was discriminated against on the grounds of her race and submitted that the reason she had not been paid sick pay was purely financial, as he claimed the Respondent was struggling financially at the time.

The Respondent also denied the allegations that it had discriminated against the Claimant on the grounds of her disability. It submitted that it facilitated the Claimant to work from home and that when she indicated she was unfit for work in February 2019, she did not ask to be facilitated in working from home, unlike her colleague MC.

The Respondent asserted that it was not obliged to provide reasonable accommodation for an employee who was not fit to work.

Regarding the claim of discriminatory dismissal, the Respondent acknowledged that the Claimant had not been informed her role was at risk of redundancy at the same time as her colleagues and claimed this was an oversight.  The Respondent submitted that the redundancy was genuine as it arose from a decision to cease carrying on business in which the Claimant was employed and that the Claimant was not treated any less favourably than her colleagues on the grounds of her disability.

Findings

The Adjudication Officer (AO) found that the Claimant had identified an Irish employee, MC, as her comparator. The AO noted that it was clear from the evidence that MC was paid her full salary for the entirety of her sick leave in 2018; the Respondent did not require MC to apply to the relevant Department for illness benefit and facilitated her in working from home, even when she was unable to work all of her normal hours.

The AO found that the Claimant had demonstrated that she had been treated less favourably and that the only difference between the Claimant and MC was that MC was of a different race. While the Respondent claimed the reason for non-payment of sick pay was financial only, it did not produce any evidence to show that its financial situation had altered significantly since the time MC was paid while on sick leave. The AO upheld the Claimant's claim and awarded her €20,000 compensation.

In relation to the alleged failure to provide reasonable accommodation, the AO found that while an employer has an obligation to assess if measures can be put in place to enable an employee with a disability to fully perform their duties, that obligation did not require an employer to consider measures to enable an employee to return to work, where the employee has indicated that they are not fit to work and where they do not suggest that the situation can be altered by providing reasonable accommodation. The AO did not uphold the Claimant's claim in this regard.

The AO also did not uphold the Claimant's claim that she was discriminatorily dismissed. The AO found that it was clear that the Respondent closed its entire Irish operation and made all of its staff, including the Claimant, redundant.

Take away points for employers

It is important to note that while an employer may provide that certain employment benefits are discretionary in nature, an employer must act reasonably in exercising this direction and there should be a clear and objective basis for doing so.

This decision also once again highlights the importance of having meaningful engagement with employees who have a disability in relation to ways they might be supported in the workplace, both from a legal and an employee relations perspective.

If you have any questions, please get in touch with Alison Martin.

Further Reading

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