Two recent decisions from the Equality Tribunal add up to over €130,000 in awards for employees due to the employers failure to provide reasonable accommodation as a result of the employees disability. Both Tribunal chairs commented on the awards by saying that they were guided by the European Court of Justice on this and that awards for discriminatory treatment are to be effective, dissuasive and proportionate.
The cases differ in terms of the cases taken but both are very clear that the employer did not provide a reasonable accommodation to the employee in accordance with section 16 of the Employment Equality Act, and so the Tribunal found in favour of the employees.
In the first case, Fergal Reilly v United Parcels Service CSTC Ireland Ltd. (EE/2010/915), an employee was a driver with the company and hurt his knee meaning he could not take part in driving activities until he was recovered. The company argued that they could not provide him with any alternative work whilst he was recovering and so he was out of work for a long period of time. As no work was forthcoming from the employer he was then certified fit to perform light duties of which the employer said there were none, at the same time the company stopped paying sickness benefit (as this was discretionary). The employer countered that it would have cost €28,000 per year to hire a helper to assist the employee when recovering which was prohibitively expensive. The employee then tendered his resignation on 10th June 2010, citing the failure to give him work, the failure of the respondent to pay his wages, failure to process grievances previously raised and which are not relevant to the case on hand, and failure to communicate. The employee considered this to amount to discriminatory constructive dismissal.
The Tribunal cited that the employers business had a turnover of some €70 million in that year with a profit of €4.5 million, and found that "I do not accept that the respondent would not have been able to provide reasonable accommodation for the complainant following a full examination of the situation, which, as noted, did not occur. I therefore find that the complainant is entitled to succeed in his complaint of the denial of reasonable accommodation on the part of the respondent." the Tribunal awarded €63,000 to the employee which was the equivalent of 18 months salary. the fact that the employers turnover was viewed in order to assess if they could make reasonable accommodations is worth noting and should be something employers look at when deciding if accommodations can be made.
The second case, A Medical Secretary v HSE West (EE/2009/671), revolved around a request in July 2007 when the employee was informed that she had to move from her existing office which was convenient to the toilet to a different office where it was more difficult to access the toilet. The employee suffered from a bowel disorder and the nature of the complainant's medical condition is such that she needs to be able to access a toilet quickly as she suffers from embarrassing symptoms associated with her medical condition. As she was unable to comply with the new working arrangements she was placed on sick leave. The employee provided medical evidence to the respondent which clearly stated that she would be fit to return to work if she was provided with a single office close to toilet facilities. It was submitted that the employer failed to make reasonable accommodation despite repeated requests and has denied the complainant access to her position as a medical secretary since July 2007. The situation continued throughout 2007 and 2008 with the employee repeatedly requesting that an accommodation be made to enable her to return to work.
The employee was offered a number of alternative posts but she was of the view that they were not suitable for her. In relation to one of the posts she was of the view that it was not a suitable post given that the office was on the 4th floor and she had to carry files down the stairs and walk up the street to another office. She said that lifting heavy files would have aggravated her condition. In 2012 the employee was offered a post in St Camilus Hospital and her GP felt it was not suitable given the increased travelling time from her home. She said that the prospect of being remote from toilet facilities for greater than 40 minutes would put her under increased mental and physical pressure. She said that the disease is not curable but it is manageable and treatable
The Tribunal was of the view that the employer did not take the employees medical problem seriously when it was raised and when it was raised by the employee that they did not take account of here needs they claimed that they offered reasonable alternatives, the Tribunal countered that "the duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person's disability" A proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the duty imposed by Section 6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done.
"The scope of an employer's duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity. However if this results in a diminution of the person's prospects of advancement in employment it would seem reasonable to conclude, on a purposive construction of the Section, that the employer should then consider if any countervailing measures could be taken to ameliorate that disadvantage."
The Tribunal found that the employer had discriminated against the employee in terms of the role and of any advancement in the position and awarded €70,000 to the employee.
This case is interesting as it clearly states than an employer must be proactive with reasonable accommodations and that it is not enough to give token gestures.
Impact for Employers
In both of the highlighted cases it is clear that the tribunal took a dim view of the employers efforts to make accommodations in both cases but also it should be noted that
- the employers profitability may need to be looked at when deciding if an accommodation is reasonable and what is deemed prohibitively expensive
- the employer must be proactive with the employee and try to understand the full extent of the employees disability, and should not wait for the employee to raise alternatives before acting.
There is a heavy burden on employers and as we mentioned at the beginning the rationale behind the high awards is to be effective, dissuasive and proportionate so the awards are meant to discourage employers from engaging in this behaviour.
