Locations
@
The Equality Tribunal has awarded Ms Clavin, a former employee of Marks @ Spencer €40,000, the equivalent of 18 months’ salary which is a relatively high award, on the grounds that she was dismissed on the basis of her disability. Ms Clavin commenced employment as a Sales Advisor with Marks @ Spencer in March 2005. In March 2011, she suffered an injury outside of work and was diagnosed with severe tendonitis. In accordance with the employer’s policy, Ms Clavin was ...
The Equality Tribunal has awarded Ms Clavin, a former employee of Marks & Spencer €40,000, the equivalent of 18 months’ salary which is a relatively high award, on the grounds that she was dismissed on the basis of her disability. Ms Clavin commenced employment as a Sales Advisor with Marks & Spencer in March 2005. In March 2011, she suffered an injury outside of work and was diagnosed with severe tendonitis. In accordance with the employer’s policy, Ms Clavin was referred to the Occupational Health Advisor who requested a medical report from her Consultant. The report was provided to Occupational Health in August 2011 and it did not state whether Ms Clavin would be able to return to work. Occupational Health did not meet with Ms Clavin, nor did they request her to attend any medical examination.
Following this, the employer’s HR Manager wrote to Ms Clavin in September 2011 and invited her to attend a meeting. This letter misquoted Ms Clavin’s Consultant as stating that a likely return to work date could not be provided in the “short term foreseeable future”. In any event, Ms Clavin did not receive the letter in time to attend the meeting (as she was recuperating from surgery). Subsequently, Ms Clavin was phoned by the HR Manager on 2 January 2012 and invited to attend a meeting on 4 January 2012. At this meeting, Ms Clavin was advised that her job would be kept open for a further period of 4-6 weeks, if she could provide confirmation from her Consultant within two days that she would be fit to return to work within that period. Following the meeting, Ms Clavin called the HR Manager and requested more time to obtain a medical opinion from her Consultant, who had not yet returned from the Christmas break. Ms Clavin was dismissed on 10 January 2012 on grounds of ill-health.
The Equality Officer was critical of Marks & Spencer in this case and noted that its approach “fell far short of best practice in many ways”. In particular, the Equality Officer criticised the following actions:
- the misquotation of Ms Clavin’s Consultant regarding a return to work date;
- the limited role of Occupational Health and in particular that the decision to dismiss was based on only one telephone conversation six months prior to the dismissal itself;
- the very short notice provided to Ms Clavin regarding the meeting in January 2012 and that she was not advised that she could be accompanied to this meeting;
- the refusal to provide Ms Clavin an extension of time to provide an updated medical report from her Consultant following this meeting;
- the failure to consider any reasonable accommodation, which in this case would have involved providing Ms Clavin further time to recuperate from her operation (particularly as she was on unpaid sick leave); and
- the failure to allow Ms Clavin appeal the dismissal.