News from the Courts:
Agency workers and disability: Agency worker awarded €42,640 on the grounds of disability
A recent decision from the Labour Court – which was appealed from the Workplace Relations Commission – definitely emphasises the onus on companies when they are engaging with Agency workers.
This case involved an agency worker working in a manufacturing company. This worker suffered a heart attack at home and was absent on extended sick leave until the employment agency terminated his employment in September 2015. The Company provided work for the worker but did not employ him, and denied being his employer.
The worker had been working for the Company (through the Agency) for 9 months when he took extended sick leave following the heart attack, and was visited by the Operations Manager in hospital who said that his job was safe. After a month of absence, the Company wrote to the Employment Agency enquiring about the worker’s health, as it was difficult to sustain long term absences. The Agency stated that it would be at least 4-6 weeks before he was likely to return to work. After another 3 weeks, the Company notified the Agency that they had replaced the worker. Within 2 days, the Agency wrote to the Company and advised that they needed to terminate the worker’s contract, but asked if the company would consider him again if opportunities arose when he was back to full health. The Agency subsequently dismissed the worker.
The Labour Court ruled in favour of the worker on the basis that the Company had failed to:
a) Give him fair notice that he was being dismissed on the grounds of incapacity
b) Request any information about his medical condition
c) Give the worker an opportunity to provide any medical evidence or submission
In summary, companies utilising Agency Workers through Employment Agencies need to be very carerul about providing the same basic working terms and conditions of employment as if they have been hired directly.