Disability remains the most cited reason for discrimination claims under the Employment Equality Act, according to the WRC’s most recent Annual Report. For employers and HR professionals, failing to manage accommodations or disability-related absences isn’t just tricky—it’s risky and expensive.

Join Sinead Morgan, Legal Director at DAC Beachcroft, for a practical 45-minute session where she breaks down recent WRC and Labour Court decisions and shares the key lessons HR teams wish they’d learned sooner. Discover actionable guidance on reasonable accommodations to keep your workplace inclusive, compliant, and far less stressful. 

Transcript:

Laura: Thank you so much for your patience. We were just running one or two minutes late there. You're very welcome to our webinar today, which is sponsored by HRLocker. My name is Laura McKee from Legal-Island, and I will be facilitating today's session. I'm delighted to be joined by Sinead Morgan. Sinead is a legal director at DAC Beachcroft.

What are we talking about today? Well, disability tops the charts for discrimination claims in Ireland, and the consequences for employers can be costly. So, over the next 45 minutes, Sinead will walk you through the key lessons from recent case law so you can keep your workplace inclusive, compliant, and protected.

Please feel free to submit your questions throughout the webinar using the Q&A feature, and I will make sure we put as many of them as possible to Sinead at the end.

So, just a quick shout out to our sponsors, HRLocker. HRLocker is an all-in-one HR software platform that simplifies people management for growing businesses. From leave requests and time tracking to performance reviews and employee records, it brings everything into one easy-to-use system. As your team grows, scaling with HRLocker is scaling with confidence. We are delighted to have them as our sponsors for the webinar today.

Please also head over to our Legal-Island Employment Law Hub today to get your 14-day free trial. And there, you can access all of the quality materials on the Legal-Island Employment Law Hub, such as our articles, case law reviews, webinar recordings, and more.

We're just going to run a quick couple of polls now before Sinead gets started. My colleague, Gosia, is just going to share those on the screen. I'll just give her one moment. There we go. Got the first one.

So, the question is "Has your organisation dealt with a disability-related absence or accommodation request in the past 12 months?" We'll just give a couple of seconds for the answers to come through. It looks like "yes, more than once" is over 50%. Great.

We might move on to the next poll, Gosia. And that is "What's your biggest challenge when it comes to disability in the workplace?" Is it getting the accommodation decision right, managing and documenting long-term absence, or understanding our legal obligations?

It looks like understanding your legal obligations is at 61%, and closely behind it is getting the accommodation decision right. Hopefully today's session will give you a little bit more clarity around that.

And our third poll is just coming up now. We'd love to know, at Legal-Island, what is your top challenge in HR at the moment? Is it redundancy and restructuring, absence management, AI adoption and governance, or DEI? This just helps us shape future events for Legal-Island. So, absence management, absolutely, that seems to be a topic that comes up again and again.

Great. Thank you so much for answering all of those polls. We will now move on to Sinead's session. Gosia is going to share your slides, Sinead, and then I'll hand it over to you. Thank you so much for being here this morning.

Sinead: Thanks, Laura. Delighted to be here.

Laura: One moment to get the slides.

Sinead: No problem.

Laura: Here we go.

Sinead: Thanks, Laura. So, this morning, I'm going to run through a number of recent decisions in the area of disability and reasonable accommodation to give you a sense of what is happening, what are the obligations, and what steps you need to do to mitigate against risk.

So, as you're probably all aware, there is a duty to provide a reasonable accommodation for an employee who has a disability, and this is set out in Section 16 of the Employment Equality Acts 1998-2015. And I'm going to go through that definition because there are a couple of really salient points in it.

It states that an employer has a duty to take appropriate measures to enable a person with a disability to access, participate, and advance in employment unless such measures impose a disproportionate burden on the employer. And I've highlighted the key terms there.

First of all, once the employer becomes aware of an employee's disability, it triggers a duty to take appropriate measures, and they have to be assessed on a case-by-case basis.

The person has to have a disability as defined in the legislation. And as you're probably aware as well, that is an incredibly broad definition, and it includes a physical, intellectual, mental, or emotional condition. It can be temporary, it can be permanent, and it can also be present, past, future, or imputed.

The duty relates to both access, participation, and advancement in employment. So that is recruitment, promotion, and, prospectively, termination at some point.

And the only defence available to an employer is that the measure has a disproportionate burden. They can refuse a request for a reasonable accommodation if it has a disproportionate burden.

So, what does that mean in really practical terms? Well, firstly, the employer must be aware of the disability to trigger this obligation. This can either be by notification by way of the employee or constructive knowledge, and that means they wouldn't be . . . I suppose it wouldn't be reasonable to expect that they wouldn't have understood somebody to have a disability given the given circumstances.

It applies to all stages of the employment, from the recruitment stage to training, promotion, and the workplace environment, and ultimately it can be relevant in termination decisions.

What is a reasonable accommodation? We will talk about this at length in relation to the case law, but there's no list produced in the Act. And what that means is it's a case-by-case basis and a case-by-case assessment.

I've provided some examples here from case law, such as providing assistive technology, adjusting training materials, allowing flexible hours, or modifying work sites. But as I say, it is a non-exhaustive list. It is not a one-size-fits-all.

And as I've already mentioned, there is only one defence to not providing a reasonable accommodation, and that is if it would have an excessive cost to the business. Again, this must be determined on a case-by-case basis.

What does this mean for employers? It means they must assess each individual situation, and they must consult with the employee when doing so.

You may not be aware, or you may be aware, of the Nano Nagle case. So this is the key case or the seminal case in relation to reasonable accommodation. The background to that case is there was an individual who was a special needs assistant at a school, and she incurred really severe injuries as a result of a car accident. She was paralysed from the waist down, and she was confined to a wheelchair. She was on long-term sick leave but then sought to return to work in 2011 as an SNA.

The company did engage with her, and they did send her to an occupational health assessment. They determined that she was incapable of performing her full range of physical duties, and they refused to let her return to work.

This resulted in her taking a case to the Equality Tribunal, but ultimately, this decision was appealed all the way to the Supreme Court. An award of €40,000 was made.

I'm not going to go into detail of each and every case. I'm going to focus on the Supreme Court case, but it is worth noting that the Supreme Court overturned the Court of Appeal in relation to a reasonable accommodation, and they specifically stated that a reasonable accommodation could include reorganisation or distributing tasks that were, I suppose, included in the role.

So, post-Nano Nagle, where are we? Well, the test at a very high level is in order, I suppose, to say, "To ensure that you've complied with your obligation to provide a reasonable accommodation, you must prove you did the following".

Number one, you considered all appropriate measures. So, you look at the employee, you look at the challenges they face, you look at what they can actually do, and you look at their role, and you say, "Are there appropriate measures that we could take to facilitate them in continuing in this role?"

If you want to decline a request for reasonable accommodation, it is quite a narrow test in that it has to have a disproportionate burden. What a disproportionate burden is will really depend on the cost of the accommodation, the size of the employer, the resources available to them, and the possibility of public funding. And this was specifically highlighted in Nano Nagle, the possibility of public funding, because it involved a school.

And finally, engagement with the employee is really key. This is not having a conversation or talking at the employee. This is a two-way conversation with engagements, proposals, and counter-proposals.

What was the impact of that case on employers in relation to their duty to provide a reasonable accommodation? Well, it broadened the duty to provide a reasonable accommodation, which was already a relatively high duty or burden.

One of the key aspects of this decision is it clearly stated that the employer must consider redistributing both core or essential tasks and non-core tasks, provided it doesn't cause a disproportionate burden.

Previously, it had been felt that maybe you might have to reassign non-core tasks, but if the individual couldn't do a core task, then no accommodation should be required to be provided. However, this consideration must now not necessarily be granted but take place on foot of the Nano Nagle case.

Finally, what are the parameters of reasonable accommodation? Well, it did state, somewhat helpfully in this case, that you don't need to create a new role, but you really can have to make very wide-sweeping changes to the current role.

I'm going to now just run over a few recent cases and the learnings from those cases post-Nano Nagle to see where we're at now.

The first case I'm going to mention is the Mary Tracy case, and this was a case involving an educational sales representative. Her job involved going from school to school and trying to sell books, which are, I suppose, quite heavy objects. She had lupus, which meant she had a manual handling restriction. As a result of working in this job, she damaged her wrist from lifting books because of the weight involved.

The respondent did accommodate her on a temporary basis. While she was injured, they allowed another staff member to accompany her and to do all the lifting and the driving for her.

They also sent her to occupational health, and occupational health recommended that she should not lift more than three kilograms. And on that basis, they simply deemed that her role was unviable.

What did they do? They offered her an alternative role. The complainant didn't want to accept this role because they felt they weren't sufficiently qualified for it. Ultimately, the company decided to dismiss the employee on the basis they could not complete their essential duties.

What did the WRC determine? Well, they found in favour of the employee in this case. They said there was a breach of the duty to take appropriate measures, and they could not rely on the capability dismissal.

And in doing so, they did criticise the employer. They stated that there was a failure to undertake a workplace assessment, which had been recommended by their occupational health, and this was a missed opportunity.

And they said that the starting position should not have been offering an alternative role, that they should have fully assessed the role she was in, her challenges, what she was fit to do, and what the appropriate measures would have been before immediately moving to offer an alternative role. An award of €29,000 was made.

What do we learn from this case? Well, employers must actively engage in accommodation discussions with employees. They must conduct comprehensive reviews of the role, and then possibly an alternative role. They must communicate clearly, and their only defence is this disproportionate burden defence.

The next case is interesting because it involves neurodiversity, which is a really growing area in the arena of disability. So, this was the Dylan O'Riordan case. Dylan was an employee in a cinema. He was autistic. He began his employment in March 2022, and he resigned in June 2024.

During the course of employment, he was promoted to a management position, and early in his role, he didn't require an accommodation for his autism. But later, when he became a manager, he experienced feelings of being overwhelmed and exhaustion, and he required an adjustment to his rostering. And specifically, he asked for two days off to rest during the week.

The employer did engage with him, but they didn't really engage properly. And at one point, they referenced his autism as a superpower, which really showed a lack of acknowledgement of the challenges that the employee was facing.

Ultimately, the employee went off on sick leave for six months, then resigned. The employer did correspond with the employee to try and resolve the shifts issue during this time, but no resolution was reached. Equally, a grievance was lodged by the employee, and the employer did engage with this grievance, but again, it was not resolved.

What did the WRC determine in this case? Well, again, they found in favour of the employee. They said, firstly, there wasn't a proper acknowledgement of autism as a disability, and there was a failure to provide a reasonable accommodation.

They pointed to the fact that pregnant employees and students were accommodated with specific shifts, and they couldn't understand why Dylan was not. The company indicated that, because he was a duty manager and there was a limited number of managers, there was limited cover to allow this change in shifts, but this was simply not accepted by the WRC.

They made a €12,000 award, and they also directed the company to engage in awareness training and to promote a positive management approach to staff with complex neurological conditions. Again, it is not unusual in these cases for WRC to make these kinds of directions.

What have we learned? Well, this was a case of too little, too late. There should be proactive engagement at early stages. Awareness and training in relation to neurodiversity is really important to identify the challenges that these employees might face.

In particular, with neurodiversity, one size does not fit all. A person with ADHD and another person with ADHD can have actually very different needs. So, the starting point is to ask the employee what are their challenges, what are their needs.

And finally, it highlights where a lack of knowledge and inappropriate management response can result in a successful claim.

Next slide, this is a case which involved reasonable accommodation, but from the view, I suppose, under the Equal Status legislation. This is the case of Kim Murphy, and it involved Hertz Rent-a-Car. This individual was a blind person with a guide dog who was a passenger in a car which was rented by her husband. She travelled in the car with her dog. The dog sat on a towel in the footwell.

When her husband returned the car, they were charged a valet charge of €150 because extensive cleaning had to be done on the car. Her husband then sought a refund and lodged a complaint and stated, "Look, you need to make accommodation because this passenger required her guide dog with her".

The company rejected this, and they relied on their terms and conditions and said anyone who had returned a car in an excessively dirty condition would have this charge applied. It was a neutral provision, so therefore, there was no discrimination in this particular case.

Ultimately, the WRC decided once more against the company. They said there was a failure to provide a reasonable accommodation, and they point to the fact that accommodation in this case was €150. It was a nominal cost.

They made an award for discrimination of €10,000, they directed the company to issue a formal apology, and they also told the company they had to update their policies and procedures and make a specific provision for people with disabilities, in particular those who had to travel with a guide dog.

What did we learn from this? Well, a neutral policy can be discriminatory, and policies should be reviewed to ensure they're not indirectly discriminatory to, in particular, people with disabilities. And maybe it is worthwhile having a look at those policies to consider specific provisions that might be made or needed to be made for those with disabilities.

Finally, if an individual or a customer with a disability raises a complaint, you shouldn't just refer them to a generic policy. You should examine that to avoid the risk of a claim.

The next case again involves an employee who was able-bodied but then they sustained an injury which, I suppose, resulted in a change in their needs.

This was a case that involved the Irish Prison Service. This was a prison officer who got assaulted during the course of her work, and she was advised that she was not fit for manual duties and she had to return to an office-based job.

So, she was off on long-term sick leave, and during that period of time, she qualified as a work training officer. It was a training role. And she was offered another role in another prison, but she was never allowed to start because a dispute arose over the range of duties she would have to perform in that role.

The Prison Service said, "Well, actually, all individuals will have prisoner contact", and because of the risks involved, they could not re-employ her as a WTO.

Her argument was, as a WTO, she would be training most of the time. There might be occasional need for contact with prisoners, but that this could be dealt with on an exceptional basis, and someone could step in and conduct whatever those duties were by way of a reasonable accommodation.

The complainant also points to the XXX case, which is a CJEU case, and that case indicated that reasonable accommodation can include a reassignment to a different role where the individual has the competence for that role and at least one vacancy exists.

What does this case tell us? Well, the determination of the WRC was that there was a failure to provide a reasonable accommodation. A really substantial award of €60,000 was made to the complainant, and more importantly, a direction was made to find a position to allow her to continue in employment within a 3-month period.

There are also really interesting dicta within the case because they specifically stated there's been a paradigm shift in the way disability is to be viewed in European and Irish law. In other words, this burden is a really significant burden. I suppose there has to be proactivity on the part of the employer. It is not a matter for the employee to be doing all of the chasing or the running. The purpose is to find a resolution.

The learnings? Well, I think the direction to find a position is really significant. It also flags, I suppose, the more substantive burden on large private-sector employers or large public-sector employers because it's very unlikely that they're going to be able to rely on the defence of disproportionate burden.

Next slide, this is another case that involves neurodiversity but in access to employment. So, it's A Job Applicant v A Garden Centre. This was a case that involved an autistic man, and he applied for a part-time role through a disability employment agency. Believing he'd been offered the role, he attended work on his first day, and he was required to complete a full day of work on a trial basis without pay, structure, or proper supervision. When he queried this, he was told, "This is the standard recruitment process, and we applied the same process to you".

Ultimately, the WRC said this was not appropriate. They accepted his argument that he was misled into working an unpaid trial day, and that no reasonable accommodation was provided for his autism. They gave two awards, one for €5,000 for failure to provide a reasonable accommodation and a further €8,000 for discriminatory dismissal because he was not retained after the first day.

What do we learn from this? Well, as I said at the beginning, the duty to provide a reasonable accommodation attaches to all stages of employment, including the recruitment stage. So, it's really worthwhile if you're inviting someone to an interview to put a line in at the end of the letter saying, "Look, if you have a disability and you require an accommodation, please let us know". So reasonable accommodations may be required within the recruitment process.

And if you are on notice of somebody's disability, as they were in this case, you should probably make proactive inquiries, I suppose, in advance of any interview or recruitment process.

Next slide. Again, this case involves an injury during the course of employment. So, the Marie O'Reilly case was a case of a credit controller with very long service, 37 years at the time of her dismissal. She had a back injury, she had surgery, and unfortunately as a result, she had paralysis in one leg and a dropped foot. She went out on long-term sick leave.

The company did engage with her. They sent her to occupational health on three different occasions, but then they engaged in capability hearings with her. And in the final occupational health report, it indicated that she was working hard to regain her mobility, but she remained unfit for office-based duties, and they suggested that a sedentary role wouldn't suit her and that she should seek alternative work. But it didn't address what challenges faced her or what she was able to do.

Ultimately, the company relied on this report to dismiss the employee because she was unfit to do a sedentary role. And after the fact, the complainant's consultant produced a report that said she was fit to work but subject to reasonable accommodations. But this was after dismissal.

The WRC in this case found in favour of the complainant. They were incredibly critical of the company in this particular case, and they made a really substantial award of €60,000, which they said was intended to have a dissuasive and proportionate effect. They also directed the company to review its policies.

The criticisms that were made of the company are interesting in this case because, firstly, they said that the company didn't carry out a thorough assessment of the needs of the employee, i.e., what are her challenges, what can she do, and what accommodations can be made in the role.

They moved directly to offer to consider an alternative role, but they didn't look at the reasonable accommodations in the current role. They overly relied on the occupational health report, and in fact, misquoted that report to justify dismissal.

They also noted that the occupational final report was an attendance by phone. And that the report itself referenced reviewing the employee within three to four months. So the last occupational health report did not justify the dismissal.

They also indicated that there was no consideration of a hybrid role or working from home. So again, very critical of the company in this case.

So what can we learn from this? Well, firstly, terminating an employee on long-term absence who has a disability is incredibly risky. There is an awful lot of boxes to be ticked, and there has to be really thorough engagement. So you have to be really proactive in assessing reasonable accommodation.

And very importantly, what was not done in this case is the employee was not given the opportunity to put forward their own medical evidence. It does need to be a two-way street in that regard.

I'm just going to briefly touch on this. This is the case of Oisín Gourley, and it involved long COVID. I suppose by way of overview, this was an employee who was dismissed while on his probationary period when his employer was on notice of long COVID.

So, initially, the employee stated he had long COVID, but it wasn't going to have an impact on his work. A few months into the employment, performance issues were raised, and he sought an accommodation in relation to both long COVID and depression. The company decided to dismiss him while he was on probation, and he alleged discriminatory dismissal, victimisation, harassment, and failure to provide a reasonable accommodation.

Ultimately, the WRC found that the discriminatory dismissal claim failed, but the failure to provide a reasonable accommodation claim succeeded, and he was awarded €5,000 in compensation. There was also a direction to review policies on reasonable accommodation and provide training to all managers within three months.

What do we learn from this case? Well, unsurprisingly, long COVID is a disability. A low award was made, so I think the direction here for training is more significant. Finally, and importantly, just because somebody is on a probation period does not mean that you don't have to consider a request for a reasonable accommodation.

We're just going to mention the CJEU case. This is quite a niche issue, but it's very interesting. So this is a 2025 decision, and it deals with accommodations for caregivers and discrimination by association.

So, in this case, what happened was that there was a referral from the Supreme Court of Cassation in Italy to the CJEU. It was from an equality case. So we had an individual employed as a station operator. She was a caregiver to a severely disabled child, and she requested a fixed morning shift or lower-level duties to allow her to follow a care programme with her child.

Instead, the company offered her a fixed workplace with a preferential schedule, but only on a temporary basis. She would not accept this, and she said, "I should be treated in the same way as a colleague who has a disability, because otherwise it's discrimination by association". At the time, Italian law did not provide a general protection for discrimination and harassment in the workplace for caregivers.

Ultimately, the CJEU found there was an obligation to provide a reasonable accommodation that extends to employees who are caregivers to a child with a disability, and that if you failed to provide such an accommodation, discrimination by association could arise.

What does this teach us in Ireland? Well, there's very little case law on discrimination by association in this jurisdiction, so it definitely broadens that category of discrimination. But I suppose we need to be aware that there is a right to request flexible work for caregivers in Ireland under the Work Life Balance Act. So, the extent to which this will have an impact remains to be seen.

It's also important to remember that when you are collecting medical data, and in this case, you'll be collecting medical data not of the employee but actually of a dependent, you will need to have this addressed in your privacy notice. You will need to consider how you deal with that data, and you ensure that your data protection obligations are complied with.

That's the end of the case law, so I'm now going to focus on what have we learned, what do these cases highlight, where we are when it comes to reasonable accommodation.

Well, I think in relation to addressing requests for a reasonable accommodation, there are things that should be in the forefront of your mind.

First of all, you should be engaging early with the employee and documenting that interaction. The interaction cannot be one-way traffic. It has to be really proactive engagement, ideally proposals, counter-proposals. You tease out the issues. You see what is viable.

When you are assessing the roles, you should start by assessing the role in question. What are the challenges that the employee faces? What are they physically able to do? What accommodation might be made? And if not, are there alternative roles?

You should avoid assuming what the employee is capable of. You should look to the employee for that information, and you should look to medical evidence, both your own medical evidence and that of the employee's doctor.

If you do intend to rely on the defence of disproportionate burden, it is a very narrow defence, and you will clearly have to document why this is not viable for your business, setting out really clear financial parameters.

Neurodiversity. I see this as the real growth area in relation to disability claims. We can see an increase in claims, and I suppose the difficulty here is the lack of awareness of employers in relation to what might be a reasonable accommodation.

You might be used to facilitating employees with back problems or other orthopaedic problems or stress or something of that nature, but these have to be very much dealt with on a case-by-case basis. And it's really important to look at your policies to ensure that they're not automatically less favourable to this cohort of employees.

Failure to follow policies or processes that you have in place in the organisation really significantly increases the risk that you will have an unsuccessful claim.

And finally, in relation to caregivers, you may want to just have a look at your policies and how those cohorts of individuals are addressed within those policies.

So just by way of overview, I tried to set out the steps you should take when you're making a reasonable accommodation assessment.

The first question you ask yourself is, "Is the employee competent and available to perform the role?"

Then you look and you say, "What are their duties? What are their limitations?" And that's based on medical evidence.

Then you look at the accommodations. Then you look at, "Is this disproportionate in line with the scale of the business?" and looking at public sector funding, if available.

You engage with the employee regarding the proposals. As I said, it's a discussion. Liability in these cases always tends to turn on how the employer assessed the accommodation. Did they consult? What's the evidence? What documentation are they relying on if they're refusing this accommodation? And generally, you're not required to invent a brand-new role, but you will be expected to make sweeping changes in the current role.

This is the final slide, guys, and I'm just going to highlight a couple of points here that I suppose are real takeaways.

First of all, reasonable accommodation. It applies to all stages of employment from start to finish.

Secondly, another area of challenge is going to be AI, because it has been found that AI use in recruitment or assessment processes can be less favourable, particularly to those with neurodivergent conditions. So that's something to be aware of.

The difficulty in dismissing someone by reason of incapacity is because the likelihood is they will have a disability, and there will be an obligation to provide a reasonable accommodation in the first instance.

Again, I've just referenced some of the variety of neurodiverse conditions there, which all require very different accommodations.

There is a limitation. Small firms, it's going to be really difficult for them. It may not be viable to provide a reasonable accommodation, but if you are relying on that defence, you need to really clearly document it.

Not a tick-the-box exercise. I think I've dealt with that, I suppose, in depth already.

And finally, the GDPR asks aspect. Who has access to this medical information? It should be a small cohort of employees, it should be secure, and this should be addressed in your privacy notice.

That's it, guys. So, if you have any questions, I am more than happy to answer them.

Laura: Excellent. Thank you so much, Sinead. That was a very comprehensive overview of the complexities of reasonable accommodation in the Irish workplace.

Folks, if you do have any questions, please drop them into the question box now.

Some of the key takeaways for me, Sinead, is the huge awards, substantial awards that are being ordered by the WRC. Sixty thousand in two of those cases, I think you mentioned. So it's huge consequences for employers if they get this wrong.

I know you mentioned quite a number of times the proactivity on the part of employers is really key, that communication with the employee, that two-way process, that engagement. I thought that was very interesting.

And also, the case where €5,000 and €8,000 was awarded for the access to employment and your tip there around putting something in the letter around that recruitment stage of, "Is reasonable accommodation something that is required?"

So really useful information provided there, and I'm sure all our delegates will find that to be very helpful.

Some questions coming in here, so just bear with me one moment. Yes, a question here. "Legally, can an employer request medical confirmation of the condition or disability during the reasonable accommodation process, particularly where an employee is looking for significant accommodations?"

Sinead: Well, I mean, as a general rule, I suppose somebody . . . I think it's quite a different position to when somebody's on sick leave. When somebody's on sick leave, you're only allowed to request from a GDPR perspective that they're not fit to work. You can't kind of delve into the medical condition.

But if somebody is coming to you and seeking accommodation, you're simply not going to be in a position to address that accommodation unless they tell you what they're physically capable and incapable of doing. So I do think that in that particular situation, you can look for that information because it is necessary.

A medical practitioner is going to be independent, and the employee can say, "Well, I need this and I need that". But ultimately, you will be relying on the independent medical evidence to justify your decisions. And that could be the evidence on your side, but equally any report produced by the employee.

Laura: Great. Thank you. Just a question here. Can you give a definition please for constructive knowledge? I think you might have referred to that.

Sinead: Constructive knowledge, it's like you couldn't both know. It's kind of like if it walks like a duck and it quacks like a duck; it's probably a duck. It's like if it was so obvious . . .

And you have to be careful around that, Laura, because you can impute a disability to somebody as well. There are cases around imputed disability. So you can't assume someone has a disability when they don't.

I totally get the question because it is a bit of a tight wire, but I mean if it was well-known knowledge in the business. But it has to be so obvious because you can't just assume someone has a disability. So it would have to be quite a high level of knowledge to amount to constructive knowledge.

Laura: Great. Thanks for clarifying that. "If you do need to adjust core parts of a role, should their terms and conditions remain as is? As in no reduction in salary?"

Sinead: Well, if it's a reduction in salary, it's going to be deemed to be discriminatory, because the whole purpose of the legislation is to put an employee in the same position as they would have been in if they didn't have the disability. The whole purpose is that you look at their condition, you look at their challenges, and you say, "We are giving you these accommodations so you can go and do the same role".

It is different now if the employee says, "Well, I now want to move back to a part-time position, and I only want to work a part-time role", and that's the accommodation, and they choose to work less hours. That would be different.

But if they're doing the same role, they should be paid the same amount, and you have to bear the financial burden of that. It's very tricky.

Laura: Very tricky. There are two parts to this. The first is, "Who undertakes a workplace assessment, and what qualifications are required to undertake this?" And then it goes on to ask, "What obligation is there on a person to declare before they're placed in a role which may be unsuitable? In the civil service, guidelines state no movement while on probation."

So maybe the first part, who undertakes the workplace assessments and what qualifications are required?

Sinead: Well, that is, I suppose, a matter for the business. You may have somebody who conducts risk assessments. I do think there's a health and safety aspect to that, so there might be a health and safety officer, or you might have an external person. But really, it's an assessment of what's required, particularly if it's a manual job, in that job, and you line that up then kind of with the medical evidence.

We'll all have safety statements in work where different roles and different things in the workplace have been assessed from a health and safety perspective. So it would be, I would have thought, in the health and safety space you would generally . . . But you may already have somebody in the business that conducts those kinds of assessments.

Laura:  Yes. And then the second part, what obligation is there on a person to declare before they're placed in the role which may ultimately be unsuitable for them?

Sinead:  Well, there isn't an obligation. This is your own personal information. We do leave it open to people to declare.

The obligation only triggers when you become aware of the disability. And there's case law around whether you had awareness, because sometimes people don't notify you and then they say, "Well, this was discrimination by reason of disability", and you go, "But I didn't know you had a disability, you never told me, and I didn't have constructive knowledge either". So no, they don't have to tell you.

And it's really tricky for employers. Particularly, let's say somebody goes on long-term sick leave for really extended periods and they refuse to disclose their medical condition. You want to get them back to work, and you're saying, "Well, look, I can bring you back. And if it's an ongoing condition in particular, I can accommodate you. But what do you need?"

It does tie your hands to a degree if somebody refuses to allow you access to that information. But you have to be seen to be forthcoming and to be willing, going, "Tell us what you need, and we'll try to make an accommodation for you".

So, it's about that willingness and that engagement if you did have to defend the case, and actually your hands were tied because you didn't know what the condition was.

First of all, is it a disability? The problem is it's so broad, most things will be. So it's always worth asking the question. And if they refuse to answer it, well, to some extent your hands are tied.

Laura:  Yeah. Great. Thank you. A question around neurodiversity here. "A common reasonable accommodation request for neurodiverse colleagues is that all work-related communication is in writing, i.e., work task instructions, all team meetings documented. This can be very difficult administratively. Would you have any advice on that?"

Sinead: Yes, that is a common one. Although it very much is a case-by-case basis, that is something I've definitely come across in practice.

I suppose who provides those and what is the cost, it's all going to be . . . you have to be able to justify it. So, is there a tool within the business whereby the meetings are . . . that everyone agrees that you use a tool and the meetings are dictated and they're produced in that way?

I suppose what you're getting at here is would you require, then, another part-time admin person to produce this stuff, to give them these instructions? But in the world of AI, there are so many tools now whereby we can have meetings recorded, we can have notes dictated, and they're quite accurate.

I think it would be very difficult to justify that as a disproportionate burden. It would be different 10 years ago, where you'd have to employ someone for X number of hours per week to do these extra parts of admin work to supply the directions.

Laura: Yeah. Great. Another question here. We're getting lots of questions in, Sinead. So obviously, this is a topic that's coming up frequently for employers. "Hi, Sinead. Thank you for the great content. In the context of a discrepancy between occupational health and GP/psychologist recommendations for reasonable accommodations, what weight should be given to both legally?" And this is an autism scenario.

Sinead:  Well, what would typically happen, Laura, in situations is that you might send the employee to occupational health, and then they in turn might be going to their GP, but they might also be going to someone, a consultant. So, what I would tend to recommend in relation to any medical condition where there is a dispute over, I suppose, the condition or the needs, sometimes you have to get a second opinion.

If you're going to occupational health and it's about, let's say, autism, that person is not a specialist in that particular area. They're a specialist in occupational health. So, you might need to get a more specialised report, and then ideally that says the same thing and that you rely . . .

Particularly, if their GP is saying one thing and occupational health is saying one thing, get a specialist consultant report in the relevant area, and it probably will hold more weight. That would certainly be what I would recommend, a second opinion.

Laura: That probably answers this question, Sinead. "Regarding medical evidence, does this need to be provided from a medical specialist of a particular area rather than a GP who's not a specialist?"

Sinead: Well, generally, I think the go-to for companies is they'll have a company doctor, but that tends to be a GP kind of level, or they'll have an occupational health they always go to. That's their starting position. I don't think they generally go to, I suppose, a specialist in the first instance. So yeah, I would always say start with occupational health, and then if there is a dispute, move to a specialist in the relevant area.

Laura: Great. We might just take one more question because we're at 10:46. How should an employer approach a staff member claiming workplace stress? Can the employee claim that as a disability?

Sinead: Stress can be deemed to be a disability in specific circumstances. Again, there is case law around this, so you do tread carefully to a degree. What it really depends on is the extent of it. Obviously, the definition of disability includes temporary, it includes permanent. So, it's really an assessment of how severe this is.

Also, is it backed up by medical evidence? I can say that I'm stressed and I require disability. What does occupational health say? That would be my go-to for any kind of stress claim.

Because there's stress which is like, "Oh, I had a bad day last week", and there's ongoing stress, which is giving me migraines, preventing me from working effectively. They're not the same thing.

So, yeah, rely on your medical evidence. Don't predetermine it. Don't make an assumption. Rely on your medical evidence. Always fall back on that.

Laura: Perfect. And Sinead, just before we go as well, a question has come in which might be good to clarify that discriminatory dismissal can happen from . . . it's not after 12 months like unfair dismissal. It can actually happen even before you're employed. It's not even day one. It's access to employment. It's from that point that an employee could claim discrimination on the grounds of disability.

Sinead: Yeah, so there's no service requirement under the equality legislation. So that's the point I was making, I suppose, in relation to the Oisín Gourley case. People think, "Oh, I dismissed somebody on probation. There's no risk", but obviously they can still take an equality claim. There's no service requirement attached.

Laura: That's good to clarify. Sinead, look, it's nearly 10 to 11:00. Really appreciate you running through all of that content so comprehensively. It was fantastic.

Thank you to all our delegates for attending and for all of your excellent questions. I know we didn't get through all of them today.

You will get an email with the slides. We also have dropped into the chat box all of the links to those cases if you fancy having a read of them in your own time.

So, thanks again to Sinead and to our delegates, and thanks to Gosia behind the scenes for doing all the technical parts.

Folks, we hope to see you again at our next webinar. Keep an eye on our website, legal-island.ie, for more information on our events and upcoming webinars.

Have a lovely rest of your morning and take care. Thank you.

Sinead: Thanks, everyone.
 

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