An Employee Has Been Certified As Fit To Return To Work On Lighter Duties– How Do I Handle It?

We have an employee who was absent from work due to a shoulder injury. They have been certified by their GP as being fit to return to work to do lighter duties. However, we do not currently have any lighter duties that they can return to and have asked them to provide us with sick certs to cover their absence until they are fit to return to normal duties. They are reluctant to do this, how do we handle it?

The first issue arising here is whether the employer is obliged to provide the employee with “lighter duties”. The second issue is whether the employer can insist on sick certs to cover the absence until they are fit to return to normal duties.

Whether the employer is obliged to provide the employee with “lighter duties”. In this case the employee has suffered a shoulder injury and we must first consider if that might be deemed a “disability” under the Employment Equality Act (the Act). Disability is broadly defined in the Employment Equality Acts and includes “the malfunction, malformation or disfigurement of a part of a person's body”. In Leydon v Customer Perceptions Ltd DEE 17/2003, a claimant who sustained a shoulder injury in a road traffic accident was deemed by the Labour Court to not be suffering merely from a temporary, minor condition. Rather, the Court considered the ordinary and natural meaning of the word “malfunction” used within the Act's definition of disability and deemed her to come within the scope of the protection of the Act. Thus, we will need to assess this issue within the context of an employer's obligations under the Act.

In essence, the Act requires an employer to make sufficient enquiries as to the extent of the employee's injury and give due consideration to any special measures that could be put in place to reasonably accommodate the employee back to their full duties. Where an employee is not fully capable of doing the job they were employed to do, even with such reasonable accommodation, an employer is not obliged to retain that employee.

Where an employer is considering the termination of an employee's employment on the grounds of incapacity, the employer must demonstrate that they have made sufficient enquiries as to the extent of the employee's condition and due consideration has been given to any special measures that could be put in place to assist the employee carry out their duties. The employee must also be informed that their dismissal is being considered due to their incapacity.

If an employer does not carry out these enquires, they run the risk of an employee taking a discrimination claim on the grounds of disability under the Act.

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