Reasonable Accommodation in the Workplace

Introduction to Reasonable Accommodation in the Workplace

The recent case of Damien O’Sullivan v FG Wilson Engineering (Dublin) Limited (ADJ -00030123) examined the issue of discrimination on the grounds of disability, and how Covid-19 can impact what steps an employer needs to take when considering a reasonable accommodation.

Mr. O’Sullivan (the Complainant) argued that his employer, FG Wilson Engineering (Dublin) Limited  (the Respondent) had failed to provide him with reasonable accommodation for his disability and had dismissed him on discriminatory grounds contrary to the Employment Equality Acts 1998-2015.

Background

The Complainant suffered from a disease known as Psoriatic Arthritis which is an auto immune illness which makes the Complainant extremely vulnerable to infections.

Understandably, when the Covid-19 pandemic hit, the Complainant became very concerned for his health. Due to the nature of his illness, the Complainant was terrified of going to work for fear that he would contract Covid. The Complainant was certified as unfit to work by his doctor.

On 22 May, the Complainant provided the Respondent with another certificate stating that the Complainant would be fit to return to work, provided that sufficient health and safety measures were implemented in the workplace.

When the Complainant informed the Respondent of this, the Service Manager emailed the Complainant, informing him that he was not able to fulfil the terms of his contract and as a result his employment was being terminated. The Complainant believed that he had been discriminated against on the grounds of his disability

The Respondent denied that they had discriminated against the Complainant. They stated that the inability of the Complainant to fulfil the terms of his contract meant that they had reluctantly terminated his employment.

Legislation and Case Law on Reasonable Accommodation

Counsel for the Complainant noted the case of An Executive Assistant v A University (ADJ – 00022851) where the Adjudication Officer had stated that the respondent “in not carrying out an individual assessment of the various options on working from home did not take appropriate measures to enable the complainant to continue to participate in employment. I find that the respondent did not fulfil its statutory duty to the complainant. The respondent failed to make reasonable accommodation for the complainant’s disability. The complainant was discriminated against on the grounds of her disability.”

Positive obligation on the employer to enable the employee to continue in employment

The Counsel for the Complainant also noted that section 16 of the Acts places a positive obligation on the employer to enable the Complainant to continue in employment. The Complainant argued that the Respondent did not seek any medical evidence as to how the Complainant’s disability could be mitigated. The Respondent did not attempt to accommodate the Complainant in any way.

 The Adjudication Officer noted section 6(1) of the Employment Equality Acts which states that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection 2”.

Burden of proof in a discrimination claim

The Adjudication Officer commented that section 85A of the Employment Equality Acts sets out the burden of proof which a Complainant must meet when making a claim of discrimination. The Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. The Adjudication Officer made it clear that only if the Complainant succeeds in doing this does the burden shift to the Respondent to prove the contrary.

The Adjudication Officer then noted the case of Melbury Developments v Arturs Valpetters (EDA0917) where the Labour Court had stated that a Complainant must “first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that it be of sufficient significance to raise a presumption of discrimination.”

The Adjudication Officer also drew attention to the case of Hallinan v Moy Valley Resources (DEC-S2008-25) where the Equality Officer had stated that in order to establish a prima facie case of discrimination, the following would need to be established by the Complainant:

• That they are covered by the protected ground
• That the specific treatment has allegedly taken place
• That the treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Requirement to consider special treatment or facilities towards a reasonable accommodation

The Adjudication Officer noted section 16(3) of the Acts which requires the employer to consider what, if any, special treatment or facilities could render the employee fully capable. He then outlined section 16(4) which illustrates the type of accommodations which could be made by an employer. These measures are described as ‘appropriate measures’ and include things such as changes in work practices, premises, equipment, pattern of working time and distribution of tasks, or the provision of training or integration resources.

Consultation with employee

The Adjudication Officer then discussed the Supreme Court case of Nano Nagle v Marie Daly [2019] IESC 63. In this judgement, in relation to section 16, it was stated that:

“If a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer”. In this case, McMenamin J made it very clear that there is a requirement that employers engage in consultation or employ other necessary steps to establish if the job of the employee is capable of adaption so as to ensure compliance with section 16 of the Act.

Furthermore, the Adjudication Officer noted the decision of the Labour Court in Humphreys v Westwood Fitness Club DEE -7/2003 where the issue of consultation was examined. In this case it was stated that:

“The nature and extent of enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed to influence the employer’s decision”.

Decision

The Adjudication Officer accepted that the Complainant was covered under by the protected ground of disability pursuant to section 6(2)(g) of the Employment Equality Acts. The Adjudication Officer was satisfied on the facts that the Complainant had raised a prima facie case of discrimination on the grounds of disability. Therefore, the Adjudication Officer noted that in accordance with section 85A, the burden of proof had shifted to the Respondent.

The Adjudication Officer stated that an employer who has an employee who is unable to work or an employee who is seeking special measures designed to increase the safeguards against contracting Covid-19 is required to comply with section 16 of the Acts.

The Adjudication Officer found that the Respondent had made no effort to establish that safety measures were in place in the sites to which the Complainant would be assigned. He also noted that the Respondent chose not to engage with the Complainant’s own GP and chose not to enlist an independent medical practitioner to clarify how, and for what duration, his condition would compromise his ability to work as a service engineer. It was the opinion of the Adjudication Officer that there were a number of options which the Respondent could have explored which might have enabled them to facilitate the Complainant’s disability.

The Adjudication Officer noted that at no point was the Complainant informed that his job was in jeopardy. There was no history of employment issues prior to the Complainant going on sick leave. His dismissal was instant and came just hours after the Complainant had informed the Respondent that he was fit to return to work should safety measures be put in place.

The Adjudication Officer stated that in not carrying out an individual assessment of any options other than dismissal, the Respondent had not taken appropriate measures to enable the Complainant to participate in employment. It was held that the Respondent had failed to reasonably accommodate the Complainant and had discriminated against him on the grounds of disability.

The Adjudication Officer ordered that €41,076 be paid to the Complainant.

Takeaways

It is vital that employers note that they are required to reasonably accommodate employees who have a disability. The only exception to this will be where providing such reasonable accommodation would impose a disproportionate burden on the employer.

The Adjudication Officer  repeatedly highlighted how the Respondent had failed to conduct an individual assessment and consult with the Complainant as to how they could accommodate him. As seen from the case law discussed above, it is absolutely vital that employer’s carry out individual assessments of and conduct consultations with the employee in question. The possibility of a vulnerable employee catching Covid-19 requires an employer to take additional measures to ensure the health, safety and welfare of their staff.

The key takeaway for employees who are considering taking cases such as this, is that you must be able to establish a prima facie case that discrimination has occurred. Only if you succeed in doing this, will the burden of proof shift to the employer.