Employee whose role was filled while out sick with cancer awarded €50,000

A senior IT worker whose role was filled while he was absent due to a cancer diagnosis has been awarded €50,000 by the Workplace Relations Commission (WRC).
Mark Lawlor worked as a chief technical officer at DNA IT Solutions from July 2018 on a salary of €7,500 gross a month. In February 2021 he was diagnosed with cancer and commenced treatment.
He was on sick leave between March and October, after which he returned on a part-time basis. In January 2022, Mr Lawlor’s working terms were increased to three-days-a-week.
However, he had to take sick leave again from August 2022. In November of that year, he informed DNA IT Solutions that, according to a consultant’s medical letter, he would be fit to return to work in January 2023, if he felt “well enough” to do so.
Mr Lawlor submitted to the WRC that his company informed him later in November 2022 that due to his absence there had been “large technical gaps”, which had to be filled by “reassigning roles to existing and new staff and that, consequently, his role was no longer available”.
Mr Lawlor, represented by Setanta Landers of Setanta Solicitors, then submitted a complaint to the WRC in February 2023 that he had been dismissed because of his disability and that he had therefore been “discriminated against” by the respondent.
DNA IT Solutions, represented by Alastair Purdy of Alastair Purdy & Co Solicitors, did not contest that Mr Lawlor suffered from a disability but rejected the claim of discrimination.
The respondent submitted to the WRC that Mr Lawlor was not dismissed and that the company took “appropriate measures and reasonable steps” to accommodate him in the workplace. The respondent submitted to the WRC that Mr Lawlor “was not treated adversely”.
In August 2021, Mr Lawlor said he asked his doctors if he could return to work. Mr Lawlor received a letter from his hospital, stating that his treatment should not prevent him from returning to work, “if feeling well”. Mr Lawlor gave this letter to his head of operations.
The complainant stated that he then wanted to increase his hours to full-time, but he was told by the head of operations that it would be better for his health to increase his work by only one extra day a week.
The WRC heard that in July 2022, Mr Lawlor reacted negatively to new treatment and was offered two weeks off by the company, which he took, but due to the severe effects of the new drugs he had to return to long-term sick leave.
The WRC heard that different treating drugs were later effective and that when Mr Lawlor was changed to a lower dose, the side effects of these were reduced.
DNA Solutions submitted that Mr Lawlor accepted a work arrangement thereafter and was “content”.
The respondent asserted that Mr Lawlor was accommodated with “flexible arrangements” to return to work when he was fit.
The head of operations of DNA IT Solutions submitted that the complainant was “very talented”, and that “it would be hard to get someone with his level of competence”.
The respondent also submitted that it “never terminated the complainant’s contract, nor forced him to work on a part-time basis”.
In her judgment, WRC adjudication officer Maria Kelly said she was “satisfied that the respondent made decisions about the complainant’s hours of work, assignments and client-facing activities”.
However, Ms Kelly said that the respondent had acted “without making adequate enquiries about his [Mr Lawlor’s] capability to carry out the duties of a chief technical officer, or to establish what measures, if any, they could take that would enable him to participate fully in his employment”.
Ms Kelly adjudicated that if DNA Solutions had made proper enquiries to establish the complainant’s capability to resume the duties of the role of chief technical officer in October 2021, Mr Lawlor may, or may not, have been able to earn a full salary between October 2021 and the end of September 2022.
Ms Kelly said: “On his [Mr Lawlor’s] own evidence, he was not fit to return to work between October 2022 and January 2023 and, so was on sick leave for that period,”
“In all the circumstances, I consider it appropriate to award the complainant compensation in the amount of €50,000 for the effects of discriminatory treatment,” said Ms Kelly.