Tesco has been ordered to pay €40,000 after an “utterly bizarre and disingenuous” move to present an occupational health consultant’s report as a “medical opinion” when it dismissed a supermarket worker on long-term sick leave.
The award, made at the maximum of the Workplace Relations Commission’s (WRC) jurisdiction in the case, was on foot of a complaint under the Employment Equality Act 1998 by Karen Rice against Tesco Ireland Ltd in a decision released today.
Ms Rice, who had suffered an aneurysm which significantly affected her vision, had not been examined by a company doctor in two-and-a-half years when she was dismissed by the supermarket in October 2023.
Tesco had “ignored” the company doctor’s recommendation in 2021 that Ms Rice be seen by a consultant ophthalmologist – but ended her employment following an occupational health report which concluded it was impossible to recommend adjustments to her role, the tribunal noted.
Ms Rice’s solicitor, Setanta Landers, said in a legal submission that his client’s vision “became blurred while working” at the Tesco supermarket in Ballyfermot, west Dublin, on a date in June 2020.
“She informed her manager that she needed to step away from her duties to get a drink of water. Her manager walked away from her while she was explaining her symptoms,” Mr Landers said.
His client was “forced to continue her duties” until another colleague switched with her, he said. She worked until the end of her shift, the tribunal was told.
Ms Rice was diagnosed the following month with having suffered an aneurysm and took long-term sick leave due to visual impairment – but “wanted to return to work”, Mr Landers submitted.
It was alleged in a solicitor’s letter to Tesco that before falling ill, Ms Rice had been “bullied and victimised” by colleagues after crossing the picket line during a strike in February 2017.
Her position at the time of the legal correspondence was that she had to cut her working hours from 35 to 25 to avoid the alleged behaviour.
Niamh Ní Cheallaigh of Ibec, appearing for Tesco, said Ms Rice had sought a formal grievance investigation into the alleged bullying in addition to an occupational health assessment.
Following an appointment in April 2021, a company doctor concluded that Ms Rice would not be fit to resume normal duties “in the foreseeable future”, the tribunal heard.
Ms Ní Cheallaigh submitted that Ms Rice had been advised at the time that her employer “could not hold her position open indefinitely”.
Supermarket management then suggested that if the complainant had been given an “alternate view” by her own doctor she could bring evidence to a review meeting in May 2021, Ms Ní Cheallaigh submitted.
The company doctor stated in an email in June that year that Ms Rice was “deemed unfit to work based on her poor vision and mental health”. A grievance outcome was issued in February 2022.
WRC adjudicator Breiffní O’Neill noted that there had been “regular welfare meetings” with Ms Rice in the second half of 2022 up to February 2023, and that these had taken place “sporadically” before those dates.
However, he noted that there was no evidence that “any discussions took place during these meetings regarding potential adjustments to her role”.
Ms Rice remained off work on sick leave from 22 June 2020 until her dismissal on 5 October 2023, the tribunal was told.
The tribunal noted that the company doctor wrote a medical opinion following a 15 April 2021 examination stating: “In view of her poor vision and mental health issues, in my opinion [Ms Rice] is not fit for work.”
The doctor also recommended Ms Rice be seen by a consultant ophthalmologist before any decision to assign her to a job. Mr O’Neill said in his decision that it was “scarcely credible” that this was not done.
He took the same view of the company’s failure to refer her to the company doctor or an occupational health professional to examine potential job adjustments between April 2021 and March 2023, when Ms Rice had lodged the first of two complaints to the WRC.
The company had failed to present “concrete evidence” to back up its claim that Ms Rice would have been unable to do the job if accommodation for her disability had been put in place, he concluded.
Before terminating the complainant’s employment in October 2023, Tesco “never sought any further medical opinion on whether either [Ms Rice’s] sight or her mental health issues had improved to the extent that a return to work might have been possible in the almost 30 months [since] the only medical opinion”, Mr O’Neill added.
He noted that a June 2023 report from an “occupational health therapist”, who he said appeared to have no relevant qualifications and failed to address the complainant’s mental health issues.
The report had come with the proviso that it did not “offer medical advice”.
Despite this, the letter of termination given to Ms Rice had called it a “medical opinion” – a stance Mr O’Neill called “utterly bizarre and disingenuous”.
“The only actual medical opinion the respondent relied on was given over two years earlier following a meeting with the company doctor in April 2021,” Mr O’Neill wrote.
He awarded Ms Rice €40,000 in compensation for disability discrimination in the form of the failure to provide reasonable accommodation, and discriminatory dismissal.
