The complainant was employed with the respondent since 1975 but spent the last 30 years at the Customer Service desk where she had the use of a chair.  She suffered from Osteoarthritis and in 2005 had two knee replacements.  The other disability she was found to have was a colectomy.  The complainant broke her leg and was absent from work in 2009.  She was certified as fit to return to work in July 2011, two years later.  Her doctor made three recommendations:

• That she return to work on a phased based,
• That she sit for periods of time and
• That she have access to a disabled toilet.

The Equality Officer accepted that both conditions were disabilities and that the employer was on notice of them.  She considered section 16(1) and 16(3) in addition to the Westwood Fitness case - the seminal case on reasonable accommodation, EED037.  She noted that the H&S report, conducted on the Equality Officer’s instigation, had the very telling phrase in its final sentence “Therefore in line with business reasons noted above I can confirm that a chair should not be placed behind the desk” and she stated that business reasons should not be confused with health and safety reasons.  It is unclear on what basis the Equality Officer ‘instigated’ the H&S report.

The employer had offered the complainant a checkout position but the complainant asserted this would be seen as a demotion.  The Equality Officer did not find the checkout suggestion to be reasonable as it would require the complainant to lift heavy items she was restricted from lifting, such as boxes of washing powder etc.

Finally, disproportionate burden was considered.  The respondent was required to submit the costings for the installation of a disabled toilet and this amounted to under €23,000.  The employer is one of the largest retailers in the world and its revenue in Ireland for the last reporting period was £2,315 million, (sterling).  She found that the employer had the financial resources to install the necessary sanitary facilities and was not satisfied it would have place a disproportionate burden on the employer.

She was dismissive of the grievance and appeal processes as appearing to be tick-box exercises and similarly the employer’s occupational health report as it was relevant to only one aspect of the complainant’s difficulties. The Equality Officer found that there was no pro-active exploration of other appropriate measures to accommodate the complainant.

The complainant was awarded €30,000 in respect of the employer’s failure to provide reasonable accommodation and, additionally, the employer was ordered to conduct a review of its employment policies and procedures with particular reference to how employees with disabilities are treated.

Why is this case of interest?

• Employers will find useful the Equality Officer’s analysis of the actual situation vis-a-vis the requirements.
• It serves as a very straightforward example of how ‘disproportionate burden’ is considered.