Reasonable Accommodation – What is Reasonable Enough?

by Lynda Nyhan, Associate on the Employment & Benefits Team, Mason Hayes & Curran

A recent Workplace Relations Commission decision emphasises the importance of employers’ statutory obligations to employees with disabilities. We examine the facts of the case and outline the impact for employers.

Facts

The Claimant worked with the Respondent Company (the “Company”) since 2005 as a manufacturing worker. The Company operated on a 24/7 basis, where the Claimant worked a shift cycle. This cycle consisted of a five-week period, which alternated between working days, on-call and night shifts before the cycle would start again.

The Claimant worked for the Respondent on the shift cycle for nine years before taking ill with depression. As a result, she was absent from work on sick leave for 10 months. The Claimant gave evidence of her feeling as though she was “constantly jetlagged” which was caused by the shift cycle.

The Claimant attended the Company’s occupational health physician on a number of occasions and a recommendation was made for the Claimant to return to work provided that she could be accommodated by working day shifts.

The Company subsequently discussed this with the Claimant and informed her that, in line with a collective agreement and a Labour Court recommendation, should any vacant day shifts become available, she would have to compete in the same manner for them as her co-workers. The Claimant’s disability would not be taken into consideration.

WRC

The WRC considered the relevant provisions of the Employment Equality Acts 1998 – 2015 and, in particular, the degree of reasonable accommodation which must be afforded to an employee with a disability. The WRC expressed the view that reasonable accommodation includes for example, adaptation of patterns of working time and distribution of tasks or the provision of training.

The Company contended that a Labour Court recommendation coupled with a collective agreement took precedence over the Claimant’s statutory rights.

The Company also asserted that even though the parent company of the Company was a billion dollar company, the Irish entity did not have the financial means to accommodate the Claimant. However, the Company did not provide any evidence of the financial situation of the Irish entity.

Determination

The WRC concluded that the collective agreement and the Labour Court recommendation, on which the Company sought to rely, could not be afforded more weight over the Claimant’s statutory rights. The WRC held that an employer cannot pick and choose whether or not they should implement adaptations for a disabled employee, unless it would come at a disproportionate cost to the employer.

The Company did not satisfy the WRC that there was a disproportionate cost to accommodate the Claimant. The WRC held that the Claimant had been discriminated against on the grounds of disability and awarded her compensation of €20,000.

Conclusion

This is a reminder for all employers to revise their internal policies regarding disability and employees. Employers will not be able to rely upon a collective agreement or a Labour Court recommendation in order to sidestep their statutory obligations to their employees. The WRC has reminded all employers that it is not enough to simply have the employee independently assessed. In order to discharge their duty, an employer must take into consideration any practical recommendations made as a result of an occupational health assessment. The requirement to reasonably accommodate an employee with a disability can only be avoided if it would impose a disproportionate financial burden on the employer.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

About the author

Lynda is an Associate on the Employment & Benefits Team and advises on both contentious and advisory aspects of the employment relationship. Lynda regularly reviews company policies and procedures and advises on disciplinary and grievance matters, redundancy, dismissals and discrimination matters. She also has particular experience advising on managing workplace absence and performance issues.  Lynda regularly represents clients before the Workplace Relations Commission and the Civil Courts on a broad range of employment issues.

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