Thursday, May 06, 2021

Gordon Deegan

The owner of a legal practice has been ordered to pay a legal executive €20,000 compensation for her discriminatory dismissal.

The legal executive was on sick leave for stress at the time of her discriminatory dismissal in January 2019 and also suffered from depression.

Workplace Relations Commission (WRC) Adjudication Officer, Niamh O’Carroll Kelly found that the legal executive was sacked on the grounds of her disability.

Ms O’Carroll Kelly stated that stress comes within the definition of a disability due to the fact that the stress in this case was severe enough to exacerbate the woman’s pre-existing depression.

The owner of the legal practice had denied that she was aware of her employee’s stress and depression.

Credible evidence

However, Ms O’Carroll Kelly pointed to the legal executive’s “credible evidence” concerning conversations between the two relating to the legal executive’s weight gain and the employer’s partial recollection as evidence of the employer’s knowledge of the legal executive’s medical condition.

In one instant, the lawyer in March 2018 brought an old photo of herself and of the legal executive and her mother dating back to the 2007 General Election campaign.

When the lawyer commented how thin the legal executive was at that time, the legal executive explained that she suffers from depression and was on medication for it and had put on weight as a result.

In response, the employer stated: “Yeah, I was thinking that because when you came into me back in October you looked like sh**e”.

Four months later in July 2018, the legal executive further alleged that the two were at a restaurant when the employer asked ”How did you put on so much weight when you eat feck all? and the legal executive replied, “I know, but sure I told you it’s the tablets”.

Weight loss

In September 2018, the legal executive alleged that the employer told her “look how much weight you have lost since starting here due to running up and down the stairs” to her office on the third floor.

The lawyer went on to remark that two other employees should do the same “to lose a bit of weight”.

The legal executive replied that her weight loss had occurred because she had been off the medication for about two weeks and in response the employer said “that’s good”.

The legal executive’s evidence concerned meetings between the two in a restaurant and a hotel in Co Wexford.

Hostile environment

The legal executive stated that she had several run-ins with her employer and matters worsened and the legal executive’s thought of returning to such a hostile working environment in late 2018 made her physically ill.

The woman’s GP declared her unfit to work due to “stress related illness” and recommended she take medication used in treating anxiety and depression.

However, while on sick leave at the end of January 2019, the legal executive received a registered letter from her employer to say that the position of ‘legal executive’ was not viable and she was being made redundant.

The legal executive told the WRC hearing that “the purported redundancy was merely a sham designed to cover a summary and discriminatory dismissal that took place on the day after she submitted a second medical certificate arising from her disability”.

Ruling

The lawyer categorically denied that the legal executive was dismissed on discriminatory grounds.

The lawyer stated that she was not aware that the legal executive was suffering from depression and at no stage during the currency of her employment did she put her on notice of that.

The lawyer stated that she has had employees in the past who have suffered from mental health issues and she has always been supportive of them.

Ms O’Carroll Kelly found that the legal executive’s claim for discriminatory dismissal to be well-founded and stated that whether the employer’s decision “was conscious or subconscious, there is clearly a nexus between the decision, receipt of the medical certificates, her pre-existing knowledge of her depression and the dismissal”.

Ms O’Carroll Kelly also stated that the legal executive was denied the right of appeal against the decision to make her redundant and ordered the employer to pay the legal executive €2,152 for a separate workplace breach.

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