Complainant

Respondent

Anonymised Parties

A Salesperson

A Business Services Company

Representatives

Donal Hamilton BL instructed by McCann FitzGerald LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00068664-001

16/01/2025

As there are references of a sensitive nature to the complainant’s health status I have decided to anonymise this Decision.

The complainant gave evidence on oath.

The complainant went sick in November 2024 and initially when he submitted a medical certificate the respondent said that it was illegible.

Then, in an e-mail on December the 19th there was a requirement to attend for independent occupational health assessment with reference made to the possible termination of his employment if he did not do so.

There was a further e-mail on December 24th, and reference was made to the previous e-mail about possible disciplinary outcomes.

He summarises the harassment as the respondent seeking to get access to his own GP and/or to require him to undertake an occupational health (OH) assessment. He also says he was instructed to attend a capability meeting on pain of dismissal should he not do so.

He confirmed in his evidence that he had refused to attend for an independent OH assessment on the advice of his GP.

He outlined the gravity of his illness and said that he had been experiencing depression, anxiety, and suicide ideation.

The respondent made an application to have the complaint dismissed on the basis that the complainant had not made out a prima facie case.

It submitted that it had acted entirely properly and in keeping with the principles set out in  Humphrey’s v Westwood Fitness Club, Determination No. EED037. There is an obligation falling on an employer to seek independent medical assessment.

The complainant had been invited to an OH assessment and he refused to attend, saying that this was on the advice of his GP.

The request to the complainant’s GP for information is an alternative to the OH assessment and only arose when the complainant refused to go. This option is provided for in the respondent’s sick leave policy.

No case of discrimination can arise out of a request to an employee to undertake an OH assessment or in setting out the possible consequences of failing to cooperate with the employe’s legitimate requests.

As may be seen above, the complainant’s submission relates to harassment on the grounds of his disability.

As he described his medical condition at the hearing, it was very serious.

He received the first communication from the respondent about seven weeks into his period of sick leave absence due to his illness.

While that communication could have been more sensitively drafted, the respondent had no information about the nature of his illness.

It complained about the illegibility of the certificate and with some justification.  I had to ask the complainant in the hearing to decipher the stated reason for his illness, which turned out to be ‘unwell’. It was completely illegible.

In addition, employers know that if they do not fully set out the possible future exposure of an employee  to disciplinary action this may count against them should such proceedings arise, and they had failed to do so.

However, it ought to be possible to straddle these competing obligations to be sensitive and set out the formal position at the same time. In fairness, it should be added that concern was shown for the complainant’s well-being also, it was the threat of disciplinary action that upset him.

Therefore, it was clearly the perception by the complainant that he was being threatened that led to his complaint.

To what extent this was attributable to his then state of health is not for a lay person to determine. However, even a lay person may speculate that the mood of a person suffering from severe anxiety will not be improved by the receipt of such a communication.

The complainant’s evidence that he refused to attend an independent occupational health assessment on the advice of his GP is a very serious matter indeed; both in the refusal to do so and the reason for not doing so.

If this is true, the medical practitioner was stepping well outside his professional role as a clinician and exposing his patient to possible disciplinary action by his employer.

I find that the complainant has not made out a prima facie case that the respondent’s actions represented a breach of the Act either as discrimination or harassment on the disability ground.

The complaint is not upheld.

For the reasons set out above Complaint CA-00068664-001 is not upheld.

Equality, sick leave