In our previous article, we looked at how employers can proactively protect employee wellbeing from stress and burnout by building a supportive culture and putting practical policies in place. Good intentions, however, are not always matched by good practice. 

As the cases in our previous articles showed, it is often the handling of the situation, rather than the underlying condition, that turns a manageable issue into a claim before the Workplace Relations Commission (WRC), the Labour Court or the High Court. In this follow-up article, we look at case law examples of mistakes that employers commonly make.

1. Treating reasonable accommodation as a box-ticking exercise

As we noted previously, mental health conditions are capable of falling within the definition of “disability” under the Employment Equality Acts 1998–2015 which means the obligation to provide reasonable accommodation applies unless there is a disproportionate burden on the employer to do so. The most common mistake we see is not a refusal to accommodate, but a failure to engage with process properly or at all.

The leading Irish authority is the Supreme Court decision in Nano Nagle School v Daly [2019] IESC 63. Although the case concerned a physical disability, its principles apply equally to mental health conditions. The Court held that an employer must genuinely consider the full range of possible measures, including redistribution of duties (both essential and non-essential), before concluding that an employee is not capable of performing the role. Employers need not create an entirely new role, but looking only at whether the employee can do the job exactly as originally structured will not suffice.

The duty does, however, depend on the employer being aware of the disability. In A Candidate for Assistant Principal v A Government Department ADJ-00052613 (2026), a probationary civil servant certified as having a “stress related illness” was refused a transfer to a different division or line manager. The Adjudication Officer accepted that the employee’s anxiety and low mood could amount to a disability, but held that the employer could not be aware of it where the medical certificates “merely indicate that the Complainant was not fit to work”. Occupational health had identified interpersonal difficulties, rather than a medical issue, as the barrier to a return, so the claim failed.

Common pitfalls include:

• assuming that a request for flexible or remote working is simply a work-life balance request under the Work Life Balance and Miscellaneous Provisions Act 2023 and failing to consider it as a potential reasonable accommodation;
• considering only one or two measures and rejecting them without exploring alternatives such as a phased return, temporary reallocation of duties or adjusted reporting lines;
• relying on cost or inconvenience without any real assessment of whether the burden would actually be disproportionate; and
• failing to document the measures considered and the reasons for any decision

2. Misusing (or ignoring) occupational health advice

Occupational health plays an influential role in managing mental health absence, but obtaining its input is not enough: employers must use the advice in a considered way. Failing to obtain any, or the right kind of, medical advice is also a common mistake.

In Mary Tracy v Smurfit Kappa ADJ-00046740 (2025), which concerned a physical condition, the employee had been deemed fit to work subject to a temporary manual handling restriction. She rejected an alternative role as unsuitable and was dismissed on the basis that she could not fulfil her duties. The Adjudication Officer found that the employer had not properly assessed her individual needs properly, describing its failure to undertake a work site assessment offered by the occupational therapist as “a missed opportunity”, and had not consulted meaningfully about adjustments. She was awarded €64,000.

Obtaining occupational health advice is also not enough if the employer is slow to act on it. In Dylan O’Riordan v Omniplex Cork Ltd EDA2620 (2026), an autistic Duty Manager took a period of sick leave after his mental health deteriorated significantly. During his absence, he asked for accommodations including consistent scheduling, two consecutive days off and not being rostered only on closing shifts. Following an occupational health referral, the employer proposed roster options, but no agreement was reached and he resigned. The Labour Court pointed to considerable delay in engaging meaningfully, held that the request “could have been met and done so in a timely fashion” had the employer been “truly committed” to his return, and increased the award from €12,000 to €29,000.

Similarly, in A Clerical Worker v A Healthcare Employer ADJ-00053987 (2026), an employee certified fit to return following an autism diagnosis was kept from work for over eight months while the employer expected him to arrange a risk assessment himself. The Adjudication Officer held that assessing workplace risks is the employer’s job, not the employee’s, and that by shifting that burden and delaying his return the employer had failed to provide reasonable accommodation. The employee was awarded €5,000 and the employer was directed to review it’s neurodiversity policies.

3. Assuming a one size fits all approach

Conditions such as autism, ADHD and dyslexia affect individuals differently, and two employees with the same diagnosis may need very different adjustments. The starting point should always be consultation with the employee about the specific barriers they face, supported by occupational health advice, rather than assumptions about the condition.

In Omniplex Cork Ltd EDA2620 (2026), the employer consulted AsIAm and IBEC on reasonable accommodations for neurodivergent employees and provided a quiet space, short structured breaks and an earphone loop. While welcome, these measures did not meet this employee’s particular needs.

4. Pressing ahead with disciplinary or performance processes

An increasingly common mistake is commencing or continuing a disciplinary or performance management process without considering whether the employee’s mental health may be a contributing factor.

Gourley v Mason Hayes & Curran LLP ADJ-00049048 (2024) is a useful example. A solicitor with long Covid affecting his mental health disclosed his condition and asked for reasonable accommodation after performance concerns were raised during probation. The next day, he was told he had failed probation. As that decision pre-dated the request, the discriminatory dismissal claim failed, but the reasonable accommodation claim succeeded. The AO noted that the Acts impose “an unavoidable obligation on an employer to carry out an assessment to ascertain if measures could be put in place to enable an employee with a disability to continue in employment before making any decisions to their detriment”. He was awarded €5,000 and the firm was ordered to review its policy and train its managers.

This does not mean that disciplinary processes can never proceed where an employee is unwell. Under section 6(4)(a) of the Unfair Dismissals Acts 1977–2015, a capability dismissal may be fair, but the employer must show substantive and procedural fairness. Employers should consult the employee, obtain occupational health advice on fitness to participate and on whether the condition may have contributed to the issues, and consider whether adjustments to the process (such as extended timeframes, written representations or a support person) are appropriate.

Common mistakes include:

• dismissing an employee after an arbitrary period of absence (for example, on expiry of sick pay) without an up-to-date medical assessment;
• failing to warn the employee clearly that dismissal is being contemplated;
• holding meetings at a time when the employee is medically unfit to participate, without considering alternatives such as written submissions or attendance by a representative; and
• failing to offer an appeal.

5. Inadequate handling of grievances and bullying complaints

Mental health concerns frequently surface through grievances, particularly complaints about workload, management style or bullying. A poorly handled grievance can significantly aggravate an employee’s condition and, in some cases, give rise to a claim for constructive dismissal or personal injury.

In A Shop Assistant v A Retailer ADJ-00015003 (2019), the complainant was subjected to sexual comments by an assistant manager for approx. six months, which caused her mental health to deteriorate. Nothing was done when she complained. The Adjudication Officer stressed that managers have “a very serious responsibility to ensure that the employer’s policies and procedures are implemented” and awarded €40,000 for management’s failure to prevent the treatment.

In our previous article, we also referenced the comments made by the WRC in A Worker v A Policing Service (IR-SC-00005289) regarding management’s “prolonged lack of engagement” with an employee suffering work-related stress.

Common mistakes include:

• delaying the investigation or allowing it to drift, often while the employee remains on sick leave;
• appointing an investigator who lacks independence from those complained about, or who is not appropriately trained to conduct investigations;
• treating complaints about workload or management style as “not a grievance” and failing to address them at all;
• failing to keep the employee informed of progress or the outcome; and
• failing to put supports in place for the complainant (and, where relevant, the respondent) during the process.

6. Breaching the duty of care: ignoring the warning signs

Alongside the statutory duty under section 8 of the Safety, Health and Welfare at Work Act 2005,  employers also owe a duty of care under common law to take reasonable care for the health, including the mental health, of their employees.

In Maher v Jabil Global Services Ltd [2005] IEHC 130, the High Court identified three key questions: whether the employee suffered an injury to their health, as opposed to ordinary occupational stress; whether that injury was attributable to the workplace; and whether the harm was reasonably foreseeable by the employer.

Foreseeability is therefore the key battleground, and this is where the early warning signs discussed in our previous article become legally significant. Once an employer knows, or ought reasonably to know, that an employee is at risk, it must take reasonable steps in response.

A frequent mistake is assuming that the availability of an Employee Assistance Programme (EAP) is sufficient. In the English Court of Appeal in Daw v Intel Corporation (UK) Ltd [2007] EWCA Civ 70, the counselling services did not discharge the employer’s duty where the employee had repeatedly raised excessive workload and the solution lay in management action. The Labour Court in Omniplex similarly noted that the employer offered EAP counselling rather than facilitating the accommodation requests. EAPs are valuable, but not a substitute for addressing the cause of workplace stress.

Practical takeaways for employers

Liability in this area rarely arises from a single decision, but from a pattern of disengagement, poor process and missed opportunities to intervene. Employers should:

• Engage early and genuinely when an employee discloses a mental health concern, treating it as a potential reasonable accommodation issue.
• Consider the full range of accommodations, including reduced hours, redistribution of tasks and redeployment, and document the measures considered and the reasons for any decision.
• Use occupational health intelligently: ask targeted questions, interrogate unreasoned conclusions and remember that the final decision rests with the employer.
• Follow fair procedures before any incapacity dismissal, including up-to-date medical evidence, a clear warning of potential disciplinary action and a right of appeal.
• Pause and assess before commencing disciplinary or performance processes where mental health may be a factor and adjust the process where necessary.
• Investigate grievances and bullying complaints promptly, independently and in line with the 2020 Code of Practice, and keep the employee informed throughout.
• Act on the warning signs: once a risk is foreseeable, take concrete steps to address the source of stress (including workload) rather than relying solely on an EAP.
• Train managers, as they are usually the first to see the warning signs and their response often determines whether an issue is resolved or escalates into a claim.

Employers who engage openly, follow fair procedures and keep a clear written record are in a far stronger position, both in supporting their people and in defending any claim.

Aisling Parkinson is partner and Jacqueline Ho is managing knowledge lawyer at Lewis Silkin Ireland.