This case concerns reasonable accommodation for disability and also the effect of a settlement agreement. The complainant was employed a Human Resource Administrator from May 2008. She was diagnosed with Narcolepsy in mid-October 2008 and was required to relocate to The Netherlands in April 2009. In consequence, she resigned and claimed constructive discriminatory dismissal on grounds of disability.

The first issue for consideration was whether the signing of a Final Settlement Agreement precluded the complainant from pursuing her discrimination claim. The Tribunal relied on Hurley v Royal Yacht Club ([1997] ELR 225) where Mr Justice Buckley stated, "I am satisfied that the applicant was entitled to be advised of his entitlement under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that this had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in his case, would have been legal advice. In the absence of any such advice I find the agreement to be void."

In this case, the Agreement was a standard one which was presented to the complainant on the day her employment ceased. However it did not refer specifically to the Employment Equality Acts. Also, the complainant received outstanding salary and annual leave entitlements and not any additional consideration to support the waiver of her rights. In these circumstances, the Agreement did not preclude the complainant’s claim.

Having established that the complainant was disabled, the Tribunal concluded that the employer knew of her disability before the events surrounding her resignation and certainly when the relocation was being discussed. Applying the approach in the Labour Court decision in An Employer v A Worker (Mr. O No.2) (EED0410), the Tribunal preferred to adopt the ‘reasonableness’ test in section 2 of the Employment Equality Acts over the ‘contract’ test. The Tribunal accepted that it would normally be necessary for a complainant to give an employer the opportunity to investigate her grievance but, on this occasion, she was entitled to consider that the prospects of altering the employer’s approach was negligible, given its indifference to her concerns. Hence, it was accepted that a constructive dismissal had taken place, which was a discriminatory dismissal in grounds of disability.

Finally, the Tribunal considered the issue of reasonable accommodation. Accepting that section 16 (3)(b) of the Acts, in light of Article 5 of the Framework Directive 2000 (Council Directive 2000/78/EC), established a free-standing right to reasonable accommodation, the Tribunal applied the test in A Company v A Worker (EDA 106), namely that "there is a clear duty on an employer to make enquiries as to whether, with special treatment and facilities, an employee suffering from a disability can continue in his employment." It concluded that the claim on reasonable accommodation had been made out and awarded the complainant €18,000 by way of compensation for the distress suffered.

This case is of interest as it is a cautionary tale on using a general settlement template and also on reasonable accommodation. Even though the complainant expected to be relocated when she took up employment, her circumstances changed when she became disabled and the employer had totally failed to consider her situation, resulting in both a constructive discriminatory dismissal and a finding on reasonable accommodation.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-116-Full-Case-Report.html