An Employee has been certified as fit to return to work on lighter duties– How do I handle it?
By David McCarroll & Alan Devaney
20 February, 2020
We have an employee who was absent from work due to a shoulder injury. They have been certified by their GP as being fit to return to work to do lighter duties. However, we do not currently have any lighter duties that they can return to and have asked them to provide us with sick certs to cover their absence until they are fit to return to normal duties. They are reluctant to do this, how do we handle it?
The first issue arising here is whether the employer is obliged to provide the employee with “lighter duties”. The second issue is whether the employer can insist on sick certs to cover the absence until they are fit to return to normal duties.
- Whether the employer is obliged to provide the employee with “lighter duties”.
In this case the employee has suffered a shoulder injury and we must first consider if that might be deemed a “disability” under the Employment Equality Act (the Act). Disability is broadly defined in the Employment Equality Acts and includes “the malfunction, malformation or disfigurement of a part of a person’s body”. In Leydon v Customer Perceptions Ltd DEE 17/2003, a claimant who sustained a shoulder injury in a road traffic accident was deemed by the Labour Court to not be suffering merely from a temporary, minor condition. Rather, the Court considered the ordinary and natural meaning of the word “malfunction” used within the Act’s definition of disability and deemed her to come within the scope of the protection of the Act. Thus, we will need to assess this issue within the context of an employer’s obligations under the Act.
In essence, the Act requires an employer to make sufficient enquiries as to the extent of the employee’s injury and give due consideration to any special measures that could be put in place to reasonably accommodate the employee back to their full duties. Where an employee is not fully capable of doing the job they were employed to do, even with such reasonable accommodation, an employer is not obliged to retain that employee.
Where an employer is considering the termination of an employee’s employment on the grounds of incapacity, the employer must demonstrate that they have made sufficient enquiries as to the extent of the employee’s condition and due consideration has been given to any special measures that could be put in place to assist the employee carry out their duties. The employee must also be informed that their dismissal is being considered due to their incapacity.
If an employer does not carry out these enquires, they run the risk of an employee taking a discrimination claim on the grounds of disability under the Act.
Section 16(3) of the Employment Equality Acts sets out the employer’s obligation to provide reasonable accommodation as follows:
(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—
- the financial and other costs entailed,
- the scale and financial resources of the employer's business, and
- the possibility of obtaining public funding or other assistance.”,
Recently, the Supreme Court in Nano Nagle v Daly [2019] IESC 63 approved the test for a prudent employer to utilise in assessing reasonable accommodation, which was set out in the case of Humphries v Westwood Fitness Club [2004] ELR 296. This test involves the following three considerations:
- Examine the factual position and seek clear medical guidance regarding the employee's capability including the degree of impairment arising from the disability and its likely duration;
To satisfy the first limb of the test, the employer should, in line with their sickness absence policy, send the employee to the company’s Occupational Health advisor seeking a medical report on the employee’s fitness to undertake their role and any special measures that might be considered to achieve a return to their post.
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.
Some questions that are likely to be relevant 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?
- What special measure, if any, might be considered to achieve a return to post? (see below)
Upon receipt of the medical report, the employer should provide the employee with a copy of the medical report and arrange a meeting with the employee to discuss the report and secure the employee’s input.
- Consider what reasonable accommodation or appropriate measures (including any special treatment or facilities) can be made available by which the employee may become fully competent to perform his or her role;
The second limb of the test involves the employer arranging a meeting with the employee to discuss the medical report and any special measures suggested by the medical advisor to achieve their reasonable accommodation back to post.
This may include consideration of alternative roles or assigning alternative tasks. This process should be well documented and guided by the report from the Occupational Health advisor.
The employer should also invite suggestions in relation to special measures for reasonable accommodation from the employee. Upon receipt of feedback from the employee, the employer may need to revert to their medical adviser for further advice regarding any such measures suggested by the employee.
Consideration should also be given to whether implementing such measures would constitute a disproportionate burden on the employer, including consideration of cost, scale of employer and mandatory requirement to consider possibility of public funding.
As outlined in the example above, the employer may not have any “lighter duties”, however an employer is obliged to consider all appropriate measures to include removing or redistributing duties or essential functions, unless the measures would impose a disproportionate burden on the employer. What is proportionate or disproportionate can depend on factors such as a cost analysis of the financial and other costs entailed, the scale of the employer, the state of the employer's financial health and the possibility of obtaining public funding or other assistance.
- Consult with the employee along the way to ensure that the employee has a say in any decisions which could adversely impact their terms and conditions of employment or which could lead to the termination of employment.
As outlined above, it is vital that the employee participates in this process from the outset and is informed that their dismissal is being considered due to their incapacity. The Supreme Court in Nano Nagle v Daly [2019] IESC 63 found that while consultation is not a mandatory duty and cannot in and of itself constitute discrimination, "a wise employer will provide meaningful participation in vindication of his or her duty under the Act”.
In the example above, the employee is insisting on being given “lighter duties” and it may be the case that after considering all appropriate and special measures that could be put in place to reasonably accommodate the employee back to their full duties, the employee is still insisting on being put on lighter duties. The Supreme Court has made it clear that employers are not required to provide an entirely designate or create a different job to facilitate employees, as per Charleton J:
“But I would again wish to emphasis that these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open -ended one…. The question is, rather to consider whether the degree of redistribution or “accommodation” is such as to create a different job entirely.”
The Court went on to say that the issue is whether the complainant “is capable of performing that position or job, not another one”.
- Whether the employer can insist on sick certs to cover the absence until they are fit to return to normal duties.
In relation to the sick certs in the above example, the employer should follow their sickness absence policy, specifically in relation to requesting regular sick certs. However, we would advise against an employer dictating to an employee’s GP the content of a sick cert, as requesting its rewording in the manner suggested may be seen by the Courts as attempting to influence the medical advisor to change their opinion.
Instead we would recommend sending the employee to the employer’s Occupation Health advisor for their assessment and providing the medical adviser with all relevant information (including the above questions and the employee’s GP cert) in advance of the medical review to make sure that the medical report produced is based on accurate and complete information.
The employer should then be guided by the opinion of the Occupational Health advisor, when assessing whether the employee can be reasonably accommodated back to their duties.
Throughout this process, the employee should be given meaningful participation including being given a copy of the medical reports and given an opportunity to challenge them and present their own medical evidence.
Conclusion
It may be the case that the employee and the employer are in agreement with the medical advice in relation to what special measures are required to achieve a return to their post, at which point, any consideration of the employee’s dismissal is not needed.
However, if the employer believes that in light of the medical advice received, that the employee is not capable of performing their duties despite being reasonably accommodated and the employer taking all reasonably appropriate measures, where needed in a particular case, to enable the employee return to work, the employer is entitled to dismiss that employee on grounds of capability as set out in Section 16 which provides there is no obligation "requiring any person to…retain an individual in a position…if the individual …is not fully competent and available to undertake and fully capable of undertaking, the duties attached to that position having regard to the conditions under which those duties are, or may be required to be performed.“
Where 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 that this is something which is being considered and recapping on the steps already taken. The employer 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. The employer should always provide the right of appeal against any decision regarding termination.
For more information on the content of this insight please contact
David McCarroll, Partner | E: david.mccarroll@rdj.ie I T: +353 91 895333
Alan Devaney, Solicitor | E: alan.devaney@rdj.ie | T: +353 91 895380