The effects of COVID-19 have brought the obligation to provide reasonable accommodation into sharp focus this past year. While remote working has been a welcome change for many, this has not been without challenge. Employers have had to consider how to accommodate disabled employees who are working remotely, while also complying with the obligation to provide a safe place of work. Mental health issues have also emerged as one of the consequences of the pandemic and many of these complaints will fall within the definition of disability under the Employment Equality Acts 1998-2015 (the “Acts”).

This article will consider two recent decisions by the Labour Court on the duty to provide reasonable accommodation. While the Labour Court arrived at different conclusions in each case, these decisions are unified by the established principle that an employer must demonstrate it has given due consideration to any appropriate measures prior before determining whether such measures would impose a disproportionate burden on the organisation.

Assured Personnel Ltd v Adam Herzyk [2020] ⚓︎

Adam Herzyk (the “Employee”) was employed as a driver with Assured Personnel Limited (the “Employer”). The Employee was absent from work for four months due to back pain. Subsequently, the Employee submitted a medical certificate confirming he was fit to work but should not work full-time and should perform light work only. The Employer asked the Employee if he was available to work seven days a week, despite being aware he was only medically certified to work part-time. Thereafter, the Employee made a number of attempts to seek work from the Employer and submitted a further medical certificate confirming he was “fit and well to undertake full-time work.” On 7 December 2017, the Employee submitted his resignation due to the “lack of perspectives and the company’s desire to continue future work…”

The Employee took proceedings against the Employer in the Workplace Relations Commission (the “WRC”) and, on appeal, to the Labour Court, claiming that, inter alia, due to the Employer’s failure to facilitate his return to work, the Employee had been discriminated against on the ground of disability pursuant to the Acts.

The Employer alleged the reason the Employee was not provided work was due to the business being seasonal and that it was low season during the relevant period, and as such, there was not much work available. The Employer further submitted that there had been an internal meeting to consider if he could be facilitated but the nature of the work meant it was not possible. This decision was not communicated to the Employee.

The WRC did not uphold the complaint on the basis that the Employee had failed to establish a prima facie case of discrimination. The Employee appealed this decision to the Labour Court.

Decision of the Labour Court

In overturning the decision of the WRC and upholding the appeal, the Labour Court found that the Employee was discriminated against due to his disability. The Court noted the Employer relied on the fact that it had applied a ‘First in First asked’ policy. However, when the Court reviewed the data provided, it was clear that other employees with less service than the Employee were offered hours during the relevant period. The Court also noted that the Employee was not included in the weekly group messages which were issued to all casual staff advising of the hours available, as he was out sick.

Although the Employer submitted that they had considered whether a reasonable accommodation could be made for the Employee, they had no documentation to support that contention nor could they explain why this was not mentioned in response to the numerous text messages from the Employee indicating his availability. As a result, the Court found in favour of the Employee and awarded him €10,000 in compensation.

The decision is available here:
https://www.workplacerelations.ie/en/cases/2020/september/eda2015.html 

Health Service Executive v Ms Margaret Hannigan [2020] ⚓︎

Margaret Hannigan (the “Employee”) worked in the Catering department for a number of years at the HSE (the “Employer”). Due to a visual impairment condition, Occupational Health recommended that the Employee should be transferred from the kitchen area and should undergo training with the National Council for the Blind (NCBI) to identify her training and assistance needs for her redeployment to a clerical role. Shortly after assuming the clerical role, the Employee was transferred to administrative duties. Following her return from a period of sick leave from October 2016 until April 2017, the Employee was placed on a three-day, 24 hours per week, instead of her usual 70 hours a fortnight.

The Employer stated that the changes which occurred in her role arose as a result of it providing her with reasonable accommodation to accommodate her disability. It submitted that further changes, such as adapting the fire alarm panel to accommodate the Employee’s visual impairment, would have resulted in a cost of €10,000, and placed a disproportionate burden on the Employer. The Employer also submitted that it had introduced a process which resulted in the main switchboard being automated after 5.00pm, therefore her hours had been reduced in any event. Furthermore, the Employer made an offer to enhance the Employee’s earning potential, affording her incremental increases over several years but she refused this offer.

As a result of her reduction in hours, the Employee initiated proceedings in the WRC alleging that she was discriminated against due to her disability and that the Employer had failed to provide her with reasonable accommodation within the meaning of Section 16 of the Acts. In finding in favour of the Employee, the Adjudication Officer found that the Employer did not go far enough in providing reasonable accommodation and awarded the Employee €20,000 compensation; directed the Employer to reclassify the Employee as a Clerical worker and to make the necessary adjustments to the switchboard. The Employer appealed this decision to the Labour Court.

Decision of the Labour Court

In upholding the Employer’s appeal, the Labour Court noted the only example of alleged less favourable treatment cited by the Employee was the failure to increase her working hours. The Court held, while it could readily be said that the duty to provide reasonable accommodation under the Acts places an obligation on an employer to seriously consider such a request, it would be unreasonable to find that the Employer is statutorily obliged to maintain her previous level of earnings where an employee is not working full-time hours and when such work was not available. As such, the Court did not accept that the failure to increase her working hours amounted to discrimination contrary to the Acts.

Furthermore, the Court was satisfied that the Employer’s response to the Employee’s disability came within the ambit of reasonable accommodation as envisaged by Section 16 of the Acts. The Court cited the extensive attempts made by the Employer to reasonably accommodate the Employee including:

• The Occupational Health assessment which recommended alterations to the Employee’s working conditions to facilitate her and the provision of training and upskilling;
• Placing the Employee in several different roles when such roles became available, including creating a new position tailored to her capabilities;
• The Employer’s continued attempt to identify alternative places of work, which met the Employee’s capabilities to supplement her income; and
• The Employer’s offer to enhance the Employee’s earning potential, which could have placed her on a promotional salary scale, affording her incremental increases over several years, an offer which the Employee refused. The Employer stated at the hearing that this offer was still open to the Employee and that every effort would be made to assess her capabilities for extra hours, which may become available.

The decision is available here:
https://www.workplacerelations.ie/en/cases/2020/september/eda2013.html

Key Takeaways for Employers ⚓︎

The within decisions provide a useful insight into an employer’s duty to provide reasonable accommodation and how far this obligation extends when decisions come before the Labour Court. It is evident that a consistent approach is not always adopted between the WRC and the Labour Court. As the current COVID-19 landscape for such claims grows increasingly complex, employers need to demonstrate that they have explored all appropriate measures available and keep records of same to fully defend such claims.

If you have any queries or require advice in relation to any of the issues raised in these cases, please contact Bláthnaid Evans or Sheila Spokes of Leman Solicitors on, +353 1 639 3000 or visit our website, www.leman.ie.