It has long been possible for employees to resign from their jobs and sue for constructive dismissal based on the treatment to which they are subjected by their employers. Those cases are, however, notoriously difficult to win and most fail. That makes the recent case of Kiernan v Annix Software Limited t/a Quest Systems, ADJ-00029174, all the more notable in circumstances where the employee not only succeeded with his claim but was also awarded substantial compensation. Here our Adrian Twomey highlights the key elements of the case to which both employers and employees should pay attention.
The Complainant, Brian Kiernan, was a Technical Support Manager with a Dublin-based office equipment supplier. He commenced employment in 1999. The evidence suggested that he had initially started working on the road providing technical support and servicing photocopiers and other equipment supplied by his employer to customers. However, his role evolved and changed over the years to the point where he was expected to be primarily office-based and at his desk managing client accounts, undertaking pricing and organising technical support.
On 5 November 2019 the Complainant was involved in a road traffic accident. He was injured and that resulted in his suffering from neck and back pain. He was out of work on sick leave for some weeks thereafter and it would appear that he was not paid during that period. In January 2020 the Complainant contacted the company to say that he wanted to return to work although his medical certificate was not due to expire until February of that year. The company informed him that he would need to be medically assessed.
A telephone-based medical assessment took place and it was found that Mr. Kiernan was fit to return to work in circumstances where his job was sedentary. He subsequently had a meeting with his manager and was apparently told that bringing him back to work would require a re-shuffle as his role had been largely absorbed by others or outsourced. He was asked if he would take a financial settlement rather than returning to work. When he said that he wanted to return, he was told that a further medical assessment would be required because the first report had not addressed the issue of manual handling.
Thereafter, a severance package was proposed by the company and rejected by the Complainant. He was then sent for a second medical assessment and told that he was now on paid suspension (his medical certificate having expired). The second medical report stated that Mr. Kiernan was not fit to return to work in circumstances where his job allegedly involved lifting weights of up to 80kg. It appears from the Adjudication Officer's decision that this was not actually a feature of Mr. Kiernan's job and that the company's briefing of the doctor had set the Complainant up to fail the medical.
The Complainant resigned and sued his employer for constructive discriminatory dismissal under the Employment Equality Acts. In essence, he argued that his back problem was a disability and that the company was well aware of it. They then used that disability as a mechanism by which they could refuse to permit him to return to work when he was fit to do so. Having considered the evidence, the Adjudication Officer concluded that:
"I am absolutely satisfied that the Employer put the Complainant into an impossible position. The Employer forced a finding of fact concerning a disability which, even if the Complainant had any such disability, is and was irrelevant to the functions and roles he performed in the workplace. This was a peculiarly clumsy attempt to prevent the Complainant from returning to the workplace and forcing him to retire by reason of ill-health. The motivation was presumably because his job had already been absorbed by others in the workplace. I am satisfied that the Complainant’s resignation was grounded in the unreasonable position and positioning adopted by the Employer. I am further satisfied he was left with no alternative other than to tender his resignation.
This was not even a case of refusing to provide reasonable accommodation or take appropriate measures. This was using a disability – weaponizing it - and forcing the Complainant to resign his position where no alternative was open to him. I am satisfied that this was a Discriminatory Dismissal."
The Adjudication Officer went on to award €58,000 to the Complainant.
The outcome highlights the importance of both employers and employees seeking and obtaining appropriate legal advice regarding employment matters. Those requiring such advice or representation before the WRC can contact our Adrian Twomey.