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€58,000 for manager whose employer ‘set him up to fail’ medical following accident

WRC orders office supplies firm to make payout to former employee who felt forced to quit

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Workplace Relations Commission. Photo: File image

Workplace Relations Commission. Photo: File image

Workplace Relations Commission. Photo: File image

An office supplies company has been ordered to pay a former manager €58,000 for "weaponising" his disability and forcing him to resign after he suffered injuries in a road traffic collision.

For reasons only known to themselves" the company "set the complainant up to fail" a medical so they could "use his disability against him,” a Workplace Relations Commission adjudicator wrote.

In a decision published this morning, she upheld Brian Kiernan's complaint under the Employment Equality Act against Annix Software Ltd, trading as Quest Systems.

Mr Kiernan, a technical support manager, alleged he had been discriminated against by the leading office technology and office equipment supplier by being refused reasonable accommodation when he sought to return to work after being hurt in the crash on November 5, 2019.

He had more than 20 years' service with the company, where he had worked since 1999, the WRC was told.

The company denied discrimination.

The tribunal was told Mr Kiernan had suffered whiplash in the crash and suffered “debilitating neck and back pain” which left him unable to work for a number of weeks.

He said he asked to return to work in February 2020 and the sales director told him he would have to be medically assessed.

The adjudicating officer, Penelope McGrath, wrote that this request was appropriate, as Mr Kiernan was hoping to end his sick leave early – but noted that there was an emphasis on the complainant's “ability or inability to perform tasks which are physical and involve lifting”.

When asked by the doctor whether he was not expected to lift weights of up to 70kg for work, Mr Kiernan said he “hadn't lifted such weights for years”, the tribunal heard.

The medical assessment found Mr Kiernan was “immediately ready” to go back to a job he told the doctor was “sedentary”.

But when he went to meet the sales director, named in the decision only as Mr St, he said he was “shocked” to be told his job had been “largely absorbed by others or outsourced”, Mr Kiernan said.

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The sales director then suggested a financial settlement, and went on to say a further physical exam would be required before any return to work, Mr Kiernan told the tribunal.

In his evidence, the sales director said he was “not entirely happy” with the first medical report, suggesting it had “not accurately addressed the manual handling issue”.

Mr Kiernan said he was offered a lump sum for settlement terms on February 20, 2020.

The adjudicating officer noted the sum “barely represented the statutory redundancy package the complainant might be entitled to” and that it came with a restrictive covenant to prevent him working in the area of office supplies.

Mr Kiernan said he declined the offer.

On the afternoon of February 27, 2020, Mr Kiernan said he was instructed to attend another medical the following morning, and replied to say he had been given too little notice.

He said he felt “very pressurised and worried” at the time and was not clear about why he was being sent for another medical. He asked that any further communication be through his solicitor.

This request was ignored by his employer, the tribunal heard.

Instead, the company ordered a new appointment for the following Monday, and the sales director sent a letter threatening disciplinary action if he refused to attend another appointment.

By this stage, his last medical certificate had expired and the sales director wrote in this letter that Mr Kiernan was now in a state of “paid suspension”.

Ms McGrath wrote that this letter created a “deep mistrust in the complainant and marked a clear change in attitude towards him”.

Mr Kiernan said he went to the second medical and was “surprised” to be asked again about lifting weights up to 70kg.

He told the doctor that would “never be part of his job description”.

Mr Kiernan said it seemed to him that the company was having his fitness assessed on tasks he was not “regularly performing” and which would “automatically” cause him to fail it.

He told the tribunal if he ever did have to help out in the warehouse that he could “always carry light weights” or employ the safety equipment which was on hand for heavy lifting.

The instruction to the doctor conducting the second medical was that Mr Kiernan's job involved “lifting some printers which can weigh approximately 80kg”.

The medical report found Mr Kiernan was not fit to go back to work if he was required to do manual handling – but could if it was removed from his role, the tribunal heard.

Mr Kiernan said he felt he had no alternative but to resign as he was “clearly not wanted and saw no future for himself in the workplace”.

The company's position was that manual handling was “not as rare as [Mr Kiernan] had suggested”.

“To my mind there can be no doubt that the complainant was set up to fail,” wrote Ms McGrath in her decision.

She fully accepted Mr Kiernan's testimony that there was “no demand” for him to lift or carry significant weights in his day-to-day duties.

“For reasons only known to themselves, the respondent set the complainant up to fail a medical assessment so that the respondent could use his disability against him,” she wrote.

Mr Kiernan had initially complained of a failure to provide reasonable accommodation, but Ms McGrath wrote that the case amounted to a discriminatory constructive dismissal.

In her decision, the adjudicating officer wrote: 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.”

Ms McGrath ordered the firm to pay him €58,000 in compensation for the effects of discrimination.


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