An employee who alleged that she had been discriminated against on the grounds of disability and had been constructively dismissed when she was forced to retire early due to ill health has been awarded the equivalent of 18 months' salary in the recent case of An Executive Assistant v A University .
Employers should take particular note of this case as the obligation to make reasonable accommodation for employees with disabilities is likely to be thrown into sharp focus as businesses manage their return to the workplace amid the COVID-19 pandemic.
Legal obligation to make reasonable accommodation
Employers are prohibited from discriminating against employees on nine protected grounds: age, civil status, disability, family status, gender, race, religion, sexual orientation and membership of the travelling community. In addition to the prohibition on discrimination in the workplace, there are further obligations on employers regarding employees who suffer from a disability. The Employment Equality Acts 1998 to 2015 provide that an employee who has a disability is to be regarded as fully competent to undertake and fully capable of undertaking any duties if the employee would be so fully competent and capable of performing the duties upon the employer making reasonable accommodation for the employee. Reasonable accommodation requires an employer to consider whether there are appropriate measures which the employer could take to support the employee with a disability to carry out their duties before the employer can decide that the employee is incapable of doing their particular job.
Employers are obligated to take appropriate measures to enable a person with a disability to access, participate and advance in employment and to undergo training unless the appropriate measures would impose a disproportionate burden on the employer. Such measures may include physical changes to the workplace, changes in work practices and/or redistribution of duties. In determining whether the reasonable accommodation sought by an employee would impose a disproportionate burden, employers are required to consider the likely costs, their own resources and the possibility of obtaining public funding or assistance.
In the recent Supreme Court decision in Nano Nagle School v Daly , it was held that the obligation to take appropriate measures is a mandatory, primary duty on an employer which can only be limited by the question of whether these measures impose a disproportionate burden. What is considered a disproportionate burden must be assessed using a test of reasonableness and proportionality. Meaningful consultation with an employee during this exercise was also encouraged.
In this case, the employee, an Executive Assistant (the “Claimant”) alleged her employer discriminated against her on the grounds of disability by failing to make reasonable accommodations that would enable her to continue working. The Claimant suffered from obsessive compulsive disorder which caused her to suffer significant anxiety about using the toilets at her workplace. She had developed incontinence due to avoiding using the toilets for long periods of time and had received medical advice to go to the bathroom at regular three hour intervals. The Claimant had been absent from the workplace while on maternity leave and in advance of her return she contacted her employer and requested reasonable accommodation. The employer arranged for the Claimant to be seen by an occupational health expert to assess her fitness to return to work. The Claimant ultimately met with the employer's occupational health expert on a number of occasions and various supports that could perhaps enable her return to work were discussed. The Claimant requested that she be designated her own toilet at work, permitted to work from home on a full or part-time basis or granted extended breaks to allow her to return home to use her own bathroom. The employer declined to make these accommodations on the grounds that the Claimant's role was student-facing and team based and due to data protection concerns. The Claimant did initially return to work but soon found her health issues too stressful to continue and ultimately retired early on ill health grounds.
The Adjudication Officer (“AO”) found that the employer did not provide any evidence that it carried out any assessment of the option of the Claimant working from home, on a part-time or full-time basis. The employer stated that it did not have a work from home policy. The employer had also conceded that another employee had been permitted to work from home for a short period of time. The AO held that the failure of the employer to carry out an individual assessment of the various working from home options and the failure of the employer to provide an explanation for the reasoning behind allowing one employee to work from home but not the Claimant constituted a failure to take appropriate measures to enable the Claimant to participate in employment. It was therefore held that the employer had discriminated against the Claimant on the grounds of disability.
The Claimant's constructive dismissal claim was unsuccessful as the Claimant had not exhausted the employer's internal grievance procedure before making her own decision to resign. The employer was ordered to pay a sum of €60,000, equivalent to eighteen month's salary, as compensation for the effects of discrimination.
Reasonable accommodation during COVID-19 pandemic
During the current and ongoing pandemic, employers should be particularly mindful of their duty to make reasonable accommodations for employees with disabilities where appropriate. Requests to work remotely by employees with medical conditions that make them particularly vulnerable to COVID-19 should be given serious consideration, particularly where doing so would not constitute a disproportionate burden on the employer. When considering such requests, the factors that are taken into consideration and the basis for granting or refusing such a request should be documented and explained to employee. Other reasonable accommodations that may be requested include changed working hours (to avoid rush hour on public transport) or a change of location of work station in the office.
Key Takeaways for Employers
- what constitutes a disability is broadly defined and interpreted under Irish law - even temporary conditions may constitute a disability;
- where an employee discloses a disability, or any condition which might constitute a disability, the employer should refer the employee to an occupational health expert for an assessment of the employee's fitness to work in their role and, if not, what measures could be taken to accommodate them in doing so;
- an assessment of the measures sought by the employee and/or recommended by occupational health experts should be undertaken, taking into account whether these measures are appropriate, the costs involved, the resources available, and the possibility of obtaining public funding;
- employers should ensure a record of the assessment and the reasoning behind granting/refusing the relevant measures is created and retained;
- if other employees have been allowed the accommodation that an employer is seeking to refuse, there would need to be a reasonable explanation for deviating from that precedent (eg roles are not comparable) and consultation should take place and be documented before any decision is implemented; and
- consultation should take place with the employee throughout this process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.