The employment team in Addleshaw Goddard recently collaborated with Legal Island on a full day session covering all aspects of absence management. The sessions looked at ensuring employers are familiar with key concepts under the Employment Equality Acts, 1998-2021 (the “EEA”) and the Sick Leave Act 2022. In particular the sessions focused on providing employers with practical guidance for managing both frequent and long term absences with a particular emphasis on developing clear policies in relation to reasonably accommodating employees to return to work. 

1.    What is 'reasonable accommodation'?
 

Under Section 16 of the EEA employers are obliged to take appropriate measures to enable a person who has a disability to access, participate and advance in their employment including undergo any training, unless the measures would impose a disproportionate burden on the employer. 

This means there is an obligation on an employer to assist individuals with a disability to carry out their job by reasonably accommodating the individuals and/or assist those with a long-term illness to return to work. To do this, an employer will need to consult with the employee to understand their needs, obtain medical evidence in relation to the employee’s disability or condition and may also need to carry out an assessment through an occupational health specialist to determine what an employee needs by way of reasonable accommodation to work or return to work. It is essential that employers follow the medical guidance when managing an employee with a disability or an employee who has been on long term sick leave. 
 

2.    What does a disproportionate burden mean?
 

The EEA requires employers when determining whether the appropriate measure(s) would impose a disproportionate burden to consider: 
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s business, and
(iii) the possibility of obtaining public funding or other assistance.

Case law has repeatedly penalised employers who automatically assume a request for reasonable accommodation is a disproportionate burden. Employers should always follow independent medical advice or advice from an occupational health consultant on possible reasonable accommodations (if any). Importantly, employers should also engage with the employee directly on any reasonable accommodation that would help the employee to be fully competent and fully capable in their role. 

3.    Are there grants or public funding available to employers?
 

There is a dedicated section of the gov.ie website called “Work and Access” where further information on grants and public funding is available to employers which may be a useful starting point. 
 

4.    Is there a mandatory duty of consultation with an employee?
 

The Supreme Court in the case of Nano Nagle School v Daly (Nano Nagle) said there was no mandatory obligation to consult with an employee in each and every case but that a “wise employer would”. Since the decision of the Supreme Court, the WRC has criticised employers who have not consulted with their employees regarding their disability. 

It is always good practice to engage with employees on their disability which includes reviewing and discussing medical reports, occupational health reports and possible reasonable accommodations directly with the employee. It is also important to engage with the employee’s own GP or doctor if an employee requests that the employer do so. Often this engagement can be done directly through the respective medical experts, but it is important that an employer take account of the opinion of the employee in respect of their own medical evidence when making any decision in relation to capability. 
 

5.    Does an employer have to come up with a new job for an employee if they are unable to do their current role?
 

No. The EEA refers to the distribution of tasks as being an appropriate measure. The Supreme Court decision of Nano Nagle analysed this further and now requires an employer to consider the redistribution of both tasks and essential duties, but not to the extent that it would be creating an entirely different job. However, employers should always seek medical advice from an occupational health consultant before making any decisions about competence and capability to do a role.  
Before any permanent decisions are made to terminate employment on the grounds of incapacity, the CJEU case of HR Rail (C-485/20) requires employers to consider, as a form of reasonable accommodation (subject to it not being a disproportionate burden), whether there are any suitable vacancies to which the employee is capable of performing that they could be reassigned to if they have been deemed incapable of performing their current role with reasonable accommodations. 
 

6.     What can an employer do if an employee refuses to specify the nature of their illness 
 

Employers should ensure that employment contract templates and absence related policies include a provision which reserves the right to have an employee examined by a company doctor or occupational health specialist. If an employee is absent from work and refuses to specify the nature of an illness or condition or if their own medical certificates are vague, the employer should have the employee examined by its own occupational health specialist to ascertain the employee’s fitness to return to work. It is in the best interest of the employee that an employer is aware of the nature of an illness so an employer can assist the employee and accommodate the employee to do their role. It is also important from a health and safety perspective as employers have a duty of care to their employees.  
 

7.    Should an employer have a capability procedure in place?
 

It is highly recommended that employers have clear guidance in place for employees who are absent from the workplace either on short or long term absence. Such guidelines are usually provided to employees through a capability policy. Having a clear capability policy which sets out the steps to be taken by an employer when an employee is absent from work and which provides for consultation opportunities by way of capability meetings is an effective way in which the employer can assist the employee in their return to work, particularly in long term absence situations. Employers should be aware that if an employee is at risk of dismissal on grounds of capability the employee should be provided with full fair procedures at all times.