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Ireland: Disability Discrimination in Redundancy Selection

14 May 2021
In this article, our Irish employment experts discuss the importance of a proper consultation and redundancy selection process in light of a recent WRC Adjudication Service decision in which an Adjudication Officer found that the Complainant had been treated less favourably under the Employment Equality Acts 1998 – 2015 on the basis of her disability when she was selected for redundancy.

Background 

The Claimant commenced employment with the Respondent employer in November 2017 as a legal executive, after the Respondent indicated her intention to run for election again and asked the Claimant if she would be interested in working with her.

In January 2019, the Claimant's employment was terminated by reason of redundancy. The termination letter stated that following a review of the structures in the office, it was found that the role of legal executive was not viable. 

The Claimant claimed that her dismissal was discriminatory on the grounds of disability and that the Respondent failed to provide her with reasonable accommodation. 

The Claimant's disability 

The Claimant suffered from depression and was on medication. The Respondent claimed that it was not aware of the Claimant's disability. Claimant submitted that the Respondent was fully aware as she had, on numerous occasions, spoken with the Respondent about her condition and treatment. 

On one occasion, in March 2018, the Claimant brought an old photograph to work and when the Respondent saw it, she commented "look at you back then, your hair, how thin you were". The Claimant explained that she suffered from depression and that weight gain was a side effect of the medication she was taking. The Respondent replied, "yeah I was thinking that because when you came back into me in October you looked like shite". The Claimant submitted that on at least two other occasions, the Respondent referred to the Claimant's weight and she explained that it was due to her taking mediation for her illness. 

In her decision, the Adjudication Officer ("AO") found that the Claimant's condition of depression and anxiety came within the definition of disability under the Employment Equality Acts 1998-2015.

The AO also found that the Claimant's stress came within the definition due to the fact that the Claimant's stress was severe enough to exacerbating her pre-existing condition. 

The AO found that the Respondent was on notice that the Claimant was suffering from a "stress related illness" upon receipt of medical certificates in December 2018 and January 2019. The AO was also satisfied, based on the evidence, that there were at least two conversations where the Claimant disclosed that her weight gain was as a result of anti-depressant medication, therefore disclosing her disability. 

Redundancy 

The Respondent submitted that she needed to cut headcount, following an organisational review by the firm's accountant. The Respondent submitted that she felt the "last in, first out" was the fairest approach. The Respondent acknowledged that she did not follow a consultation process or afford the Claimant a right of appeal. She went on to refer to alleged performance issues with the Claimant and stated that she felt the Claimant was "building a case against her". The Respondent argued that the Claimant's health did not enter her mind when making the decision to make her role redundant. 

The Claimant submitted that no other employees were selected for redundancy and claimed that the "last in, first out" principle was not followed.  

In her decision, the AO noted that a review by the Respondent's accountant in 2018 suggested a reduction in the number of support staff. However, no action was taken by the Respondent at the time on foot of this review. It was only after the Respondent was in receipt of the Claimant's medical certificates that she sought to reduce headcount and she did so in the absence of any process whatsoever. 

The AO noted that the Respondent alleged that the LIFO principle was used to reduce staff numbers. However, in that case, the AO noted that it was unnecessary for the Respondent to go into detailed evidence regarding alleged shortcomings in the Claimant's performance. The AO found the Respondent was unhappy with the Claimant's performance and that the receipt of medical certificates from the Claimant was "the straw that broke the camel's back". The AO therefore found that the Claimant was treated less favourably than employees who were not on certified sick leave. 

Reasonable Accommodation 

In relation to the question of reasonable accommodation, the Respondent claimed that the Claimant never sought any form of reasonable accommodation. The AO found that in reality there was no time for the Claimant to do so as her employment was terminated while she was on certified sick leave. 

Outcome 

Taking everything into account, the AO found that the complaint was well founded and awarded the Claimant the sum of EUR 20,000 in compensation. 

The decision, once again, shows the importance of following a fair process before making the decision to terminate an employee's employment. It would appear that on foot of the review by the Respondent's accountant, that there may have been a genuine need to effect redundancies. However, no process was followed by the Respondent. 

In this case the employer claimed that it was not "formally" on notice of the Claimant's disability. However, informal conversations together with medical certificates provided were sufficient to import knowledge of the Claimant's disability to the Employer. This is something employers should be aware of. Conversations regarding an employee's state of health should be treated seriously and may give rise to an obligation to engage with the employee further and to consider whether any form of reasonable accommodation is required.

If you require any further information, please contact Alison Martin, Senior Associate.

Further Reading

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