by Nicola Sammon, Associate on the Employment Law & Benefits team at Mason, Hayes & Curran
A recent decision of a WRC Adjudication Officer found an employer had failed in its obligation to provide reasonable accommodation to an employee with a disability. We examine the facts of the case and the likely implications for employers.
In this case, ADJ-00001672, AO: Ray Flaherty, the employer was ordered to return the employee to their payroll for six months and to pay the employee €15,000 in compensation for the “effects of the act of discrimination”. During this six month period, the parties were directed to “engage in direct and meaningful discussion” to find a reasonable and definitive resolution of the matter.
Background
The employee was diagnosed with epilepsy in 1997. However, he had not suffered an epileptic episode since 2001. The employee started working for the employer in 2004, in a “safety critical role”. He did not disclose his pre-existing epilepsy condition prior to the commencement of his employment. He continued in this role until January 2015, when he was certified as unfit for duty in respect of a health matter unrelated to his epilepsy. While engaging with the employer’s medical advisors about his January 2015 illness, the employee advised the employer’s medical officer for the first time of his pre-existing epilepsy condition. The employer refused to allow the employee return to work due to his “ongoing medical condition”.
In December 2015, the employer’s Chief Medical Officer declared the employee fit to resume restricted duties and recommended alternative, non-safety critical work be made available. The employer contended that they began a trawl through alternative positions for the employee, all of which were deemed not to be feasible. The employer submitted that they explored whether the employee could operate in a lone role using a Lone Person Working Device, but the medical restrictions of his condition meant this was not possible.
Employment Equality Acts
Section 16 of the Employment Equality Acts 1998 – 2015 requires an employer to “do what is reasonable to accommodate the needs of a person who had a disability by providing special treatment or facilities”. However, an employer is not required to retain an individual in a position that the individual is not “fully competent and available to undertake” the duties attached to that position. The question that provokes apprehension for employers is what lengths they must go to in order to fully comply with the responsibilities placed on them by the Equality legislation in relation to providing reasonable accommodation.
The decision
In considering this issue, the Adjudication Officer was influenced by the recent High Court judgment of, Nano Nagle School v Marie Daly [2015] IEHC 785, where the judge noted that the definition of “appropriate measures” in reasonable accommodation of a disability includes the adaption of both patterns of work time and distribution of tasks.
Overall, the Adjudication Officer found that a greater responsibility is now placed on employers to actively explore and consider any and all potential alternatives that may amount to “appropriate measures” to reasonably accommodate an employee with a disability. The Adjudication Officer was not convinced that the employer’s efforts were as comprehensive as one might expect. He also found it unacceptable that the employer had allowed a stalemate to develop, resulting in financial difficulties for the employee.
Conclusion
Some practical tips for employers arising from this case:
- It is vital to be able to show that efforts to explore potential alternative roles are thorough and comprehensive;
- There must be evidence of engagement within the employer, in a direct and collaborative manner to accommodate the employee;
- The merits of the efforts made will be assessed by the size and diverse nature of the employer’s business; and
- It is not an acceptable excuse for an employer to say that they already redeployed other employees with disabilities to alternative roles and they have no room to accommodate the employee in question, as a result.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
About the author
Nicola is an Associate on the Employment Law & Benefits team at Mason, Hayes & Curran. She advises employers and employees on all aspects of employment law, relating to both contentious and non-contentious matters.
Nicola advises clients on a daily basis on a range of workplace issues including recruitment, employment contracts and workplace policies, redundancies, disciplinary investigations and dismissals. Nicola also has a particular focus on the area of Irish business immigration. She advises domestic and international clients in relation to the employment of non-EEA nationals in Ireland, to include the preparation and submission of employment permits and other Irish immigration work permissions.
