Employment Law Top Tips. Avril Daly Orla O Leary

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1 Employment Law Top Tips Avril Daly Orla O Leary ooleary@mhc.ie 1

2 Employment Law Top Tips Melanie Crowley 2

3 Employment Law Top Tips Orla O Leary ooleary@mhc.ie 3

4 Employment Equality Acts, Section 16(1) - The Acts do not require any person to Recruit; Promote; Retain; or Provide training/experience to any person if the individual is not (or as the case may be, is no longer), 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. BUT 4

5 Employment Equality Acts, Section 16(3) of the Acts provides that 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 being provided by the person s employer. 5

6 Employment Equality Acts, An employer is obliged to provide reasonable accommodation to enable a person who has a disability To have access to employment; To participate or advance in employment; or To undergo training Unless the reasonable accommodation (appropriate measures) would impose a disproportionate burden on the employer. 6

7 Disproportionate Burden In determining whether the measures would impose a disproportionate burden, the following factors are taken into account 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. 7

8 Reasonable Accommodation There is no list! The Acts provide that reasonable accommodation means effective and practical measures which can include the adaptation of premises and equipment; the adaptation of patterns of working time; the distribution of tasks; the provision of training; the integration of resources.. BUT.does not include any treatment, facility or thing that a person might ordinarily or reasonably provide for himself or herself. 8

9 Reasonable Accommodation cont. Humphries V Westwood Fitness Club [2004] ELR 296 (1) Assessment of the factual position Medical evidence; Ergonomic; Occupational. (2) Reasonable Accommodation Consultation If either (1) or (2) above is absent, it would be very difficult for an employer to defend a bona fide case of discrimination. 9

10 Reasonable Accommodation cont. Disability Dyslexia Alcoholic Back Pain/Whiplash Blindness Anorexia Accommodation Providing extra time for assessment for promotion Provide time off to attend counselling Phased return to work Change of working hours to get bus to work and avoid travelling home at night time Time off for treatment 10

11 Employment Law Top Tips Avril Daly 11

12 Conflicting Medical Reports 12

13 Is there a need to dismiss? Size of employer could have an impact - e.g. Google vs Avril Daly Limited McGrane v The Mater Private Nursing Home 13

14 Test show dismissal was fair Bolger v Showerings (Ireland) Limited 1. It was the ill-health which was the reason for the dismissal; 2. The reason was substantial; 3. That the employee received fair notice that the question of his dismissal for incapacity was being considered; and 4. That the employee was afforded an opportunity of being heard. 14

15 Follow a checklist What to consider before terminating an employee on long term sick leave 15

16 Prior Warnings of possible termination Give the employee an opportunity to participate in the decision making process that leads to the dismissal - Failure to consult could be fatal 16

17 Behave fairly and reasonably Kevin Humphreys v Tesco Ireland T/A Tesco Drogheda both employer and employee must act reasonably in the lead up to termination 17

18 If in doubt.. 1. Meeting 2. Meeting 3. Meeting 4. Meeting 18

19 Making the decision to dismiss How will the process affect you as an employer? 19

20 Practical things to think about as an employer Golden handshakes Medical fees There s no quick fix Management Time 20

21 Employment Law Top Tips Avril Daly Orla O Leary ooleary@mhc.ie 21

22 Q&A Avril Daly Orla O Leary ooleary@mhc.ie 22