Many employers are unsure of what they can, or should do, when an employee is out of work on long term sick leave. The case of Carroll v H.J. Heinz Frozen & Chilled Foods Limited, Dec-E2011-114, provides useful guidance in this area and sets out clearly the actions that an employer should take when dealing with employees who are out sick on a long-term basis.

The claimant, Ms. Carroll, was employed by Heinz in the chilled food department which involved lifting up to 25kgs. She went out sick in March 2004 with repetitive strain injury. Coupled with this, the employee was diagnosed with fibromyalgia. The worker’s medical advice, which the company had been kept fully informed of, was that she could only work in temperatures of 18 to 20 degrees and could not lift weights or do shift work. On foot of this advice, the company was of the view that even if her skills were updated the company had no positions to offer her due to the fact that they had just lost 14 staff as a result of a company restructure. The worker was subsequently dismissed.

Ms. Carroll took a claim under the Employment Equality Acts outlining that her employer had failed to provide her with reasonable accommodation in that there was no investigation carried out to find out what appropriate measures could be put in place to allow her to fulfil her original role or carry out an alternative role. The respondent held that the decision to dismiss the employee was taken only after huge efforts were made to put measures in place to accommodate the employee’s needs. The company took an exhaustive number of steps in order to aid Ms Carroll’s return to work which they were able to outline at the hearing of the case. In the first instance, the employee was placed on reduced hours on the occupational health specialist’s advice. Her manager also drew her attention to a number of positions in the production line which were in temperatures of 8 to 10 degrees and that may be suitable if protective clothing was worn. However, the claimant’s GP advised that this temperature was unsuitable. Over the next three years, no suitable vacancies arose in the company which suited Ms. Carroll’s restrictions and the company terminated her employment following several meetings with the employee and her trade union representative. The employee appealed the decision to dismiss her but it was upheld by the company.

The Equality Officer outlined that the Employment Equality Act is clear in that an employer is not required to recruit or retain an individual in a role or to provide training to an individual in relation to a role if the individual is not fully competent or capable of undertaking the role. In this case, it was held that the employee had been lawfully dismissed as it was clear that the employee no longer had the capability of performing her role in the chilled area due to her specific medical condition and that there were no suitable alternative vacancies available in the company at the time of the dismissal.

For further information on employment equality, you can review the guideline on our website or contact Ciara McGuone, SFA Executive on 01 605 1668 or ciara.mcguone@sfa.ie.