Stay ahead of the curve with our exclusive Q&A series, brought to you by leading law firm, A&L Goodbody, LLP, designed to answer your most pressing legal questions. These expert insights provide clear guidance to ensure your HR practices remain compliant and protect your organisation.  

Recent WRC decisions have put the duty of employers to provide reasonable accommodations in the spotlight. One such case is Mary Tracy v. Smurfit Kappa Ireland Limited t/a the Educational Company of Ireland.  In this Q&A, we asked the team at A&L Goodbody to outline what happened in that case and answer important questions on the duty to provide reasonable accommodation in the workplace. 

1.    What happened in the Tracy case?
The Complainant was employed as an educational sales representative, a role which involved carrying a heavy load of schoolbooks on a day-to-day basis. The Complainant was diagnosed with Systemic Lupus Erythematosus (SLE), a rheumatological condition and an autoimmune disease, and was experiencing ongoing joint pain.

The Complainant had been assessed by Occupational Health and was deemed fit to work with a manual handling restriction of 3kg for a number of months. The Respondent offered the Complainant an alternative role, which the Complainant viewed as unsuitable for reasons including the scope of the role, the fact it was target driven, she did not feel qualified for certain parts of the role, and she felt she would be at-risk of burn-out.  

The Respondent then terminated the Complainant’s employment on grounds that she was not capable of fulfilling the essential duties of her role as a sales representative.

The Workplace Relations Commission (the WRC) ordered an employer to pay a total of €64,000 for: (i) the failure to consider or explore any reasonable accommodations for an employee with a disability; and (ii) the discriminatory dismissal of that employee.

2.    What is the duty to provide reasonable accommodation?
The Employment Equality Acts 1998 – 2015 (the EEA), places a positive duty on employers to do all that is reasonable to accommodate a person with a disability by providing special treatment or facilities. Pursuant to the EEA, employers must take “appropriate measures” to enable a person who has a disability to:
•    have access to employment
•    participate or advance in employment
•    undergo training

This duty is limited by the extent to which such a measure would constitute a “disproportionate burden”. Case law has helped to clarify the extent of this duty, in particular the landmark Supreme Court decision of Daly v Nano Nagle School (Nano Nagle). 

3.    What are “appropriate measures”?
The EEA provides that appropriate measures are effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned. Appropriate measures include, for example, the adaptation of equipment, patterns of working time and the provision of training or integration resources. The EEA confirms that appropriate measures do not include “any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself”.
 
There are various measures that employers can put in place depending on the circumstances and should be examined on a case-by-case basis. 

4.    How can employers know what reasonable accommodation measures should be put in place?
The obligation to provide reasonable accommodation can only be properly satisfied where an employer has carried out an assessment, whether that is medical, ergonomic or occupational, in order to see what appropriate measures can be put in place.  
In the recent Tracy case, the Adjudication Officer called out the Respondent’s failure to undertake a work site assessment, despite it being offered by the occupational therapist, “a missed opportunity” and viewed this failing as “questionable” in circumstances where the Respondent maintained its focus was on health and safety issues.

5.    Are employers legally required to consult with the person requiring reasonable accommodation?
While Irish law does not go so far as to say consultation is a mandatory obligation in each and every case, The Supreme Court decision of Daly v Nano Nagle School (Nano Nagle) makes it clear that employers would be wise to do so. In the recent Tracy case, the Adjudication Officer viewed the proceedings as “a regrettable consequence of a lack of consultation with the Complainant in relation to appropriate measures”. 

6.    What constitutes a ‘disproportionate burden’?
As noted above, the duty of providing reasonable accommodation is limited to the extent to which the financial and other costs of such accommodation constitute a “disproportionate burden”.
Before concluding that reasonable accommodation measures or facilities would place the employer under a ‘disproportionate burden’, it is imperative that the employer:
a.    consider the financial and other costs entailed
b.    investigate the possibility of obtaining public funding, grants and so on
c.    takes into account the scale and financial resources of the employer’s business
In addition, employers should be mindful that many reasonable accommodation measures would not necessarily have a cost implication. 

7.    What else should employers do when making decisions regarding reasonable accommodations?
All decisions regarding: (i) the viability of any and all appropriate measures considered and (ii) whether such appropriate measures would constitute a disproportionate burden should be clearly documented. Employers would also be wise to revisit the accommodation with the employee on an ongoing basis to ensure it remains effective, especially if circumstances change.

8.    What are some of the potential consequences for failure to provide reasonable accommodations?
The person may decide to make a complaint to the WRC for discrimination on the grounds of disability for failure to provide reasonable accommodation.

In the event of a successful discrimination claim to the WRC, an employee may be awarded compensation for the effects of discrimination resulting from the failure to provide reasonable accommodation up to a maximum of two years’ remuneration or €40,000 (whichever is greater). In the Tracy case, the Adjudication Officer awarded the Complainant €29,000 for the effects of discrimination. Where the relevant person is a job applicant, the maximum compensation for a successful discrimination claim is €13,000.

Depending on the circumstances, an employee may take additional claims, for example, as in the Tracy case, a claim for discriminatory dismissal.