Over the last year there has been a series of detailed WRC and Labour Court decisions which deal with the topic of disability discrimination. Most of these decisions have resulted in employees receiving substantial awards for discrimination, primarily due to the employer’s failure to adequately consider how the employee’s disability can be reasonably accommodated in the workplace. In this article, experienced consultant Ciara Carty seeks to summarise the legal position and provide employers with guidance on how to fairly manage employees who have a disability. The Cost of Unfair Treatment Disability is one of the nine protected grounds under the Employment Equality Acts 1998 -2015. The penalty for discrimination under these Acts is up to two years’ salary with the option to award a further two years where there has been a discriminatory dismissal. It is purely compensation based, meaning the consequences for employers who fail to appreciate their obligations can be astronomical. Employers should bear in mind that in addition to compensation the Act allows for re-engagement or re-instatement of an employee who has been dismissed. Disability under the Equality Acts It simply cannot be understated as to how broad the term “Disability” is under the Employment Equality Acts. The following definition is set out:
- “the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
- the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
- the malfunction, malformation or disfigurement of a part of a person’s body,
- a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
- a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
- and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”
O line with the above, disability can be temporary, permanent, mental or physical and it can ext6end to a disability that the employee no longer has and even an disability that the employee never had (i.e. imputed). The Importance of Reasonable Accommodation Most employers understand their duty not to discriminate, however in recent months the Labour Court have found against employers who have failed to reasonably accommodate employees and have thus been deemed to have discriminated under the disability ground. This article intends to explore the very heavy burden placed of employers to “reasonably accommodate” under section 16 of the Employment Equality Act 1998 -2015. The obligation to reasonably accommodate exists from the time a potential employee applies for a job. However the main focus of this article is circumstances where an existing employee develops a disability and is out of work due to a medical issue. The most important case was that of Humphreys v Westwood Fitness Club (EED037) where the Labour Court stated that an employer must follow the following steps if they become aware that an employee has a disability that may impact their ability to perform their job:
- “The employer should ensure that they are in full possession of all the material facts concerning the employee’s condition;
- [If relevant] 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 an opportunity to influence the employer’s decision. This will normally require a two-stage enquiry, which looks firstly at the employee’s capability / incapability and its likely duration, and secondly looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.
- If it is apparent that the employee is not fully capable, the employer must consider what reasonable accommodation they can offer the employee to make them fully capable, such as special treatment or facilities that may be available and the cost associated with such treatment/facilities.”
The above factors are crucial. The employer must firstly receive comprehensive information from a relevant medical practitioner on the employee’s disability. The employer should also specifically seek guidance on how the employee’s disability may be reasonably accommodated in the workplace. In this respect, the employer should exhaust every reasonable avenue open to them in order to accommodate the employee. The Labour Court expanded on this point in An Employer and A Worker [2005] ELR 159 and held that the test for reasonable accommodation is an objective one. The employer must have regard to all circumstances of the particular case, and should bear in mind having a “one size fits all” policy will not wash with the Labour Court. Recent WRC & Labour Court Decisions In the WRC case ADJ-00001672 the Adjudication Officer awarded €15,000 to the employee and ordered that they be re-engaged in the company to allow for the employer to more effectively consider reasonable accommodation. The Labour Court in A Store v A Worker EDA1629 upheld the Adjudication Officers decision to award €30,000 to a claimant who was deemed not to have been reasonably accommodated. The Labour Court stated that the ultimate test is that of reasonableness and proportionality. The respondent in this case, continually stated that unless the claimant was certified as fully fit to work there was nothing that could be done to accommodate her due to the duties that needed to be performed and the duties the claimant was unable to do largely overlapping. The Labour Court held that the respondent did not give adequate consideration to what adjustments could be made in respect to the claimants work requirements and so upheld the original decision. Conclusion As can be seen from the above cases, it can be a costly experience for employers if they fail to consider reasonable accommodation and can result in the employee receiving substantial compensation and being reinstated to the company. The employer should consider all reasonable alternatives and should document same. Dismissal should only ever be considered where there is no way to reasonably accommodate the employee, or the proposed accommodation would result in a disproportionate burden on the employer. In assessing the burden to the employer, the WRC or Labour Court will consider:
- “The financial and other costs entailed.
- The scale and financial resources of the employer’s business.
- The possibility of obtaining public funding or other assistance.”
Recent case law has really emphasised the importance of accommodating employees with disabilities and employers will certainly encounter difficulties where they do not sufficiently consider reasonable accommodation. If you have any questions on the content of this article then please do not hesitate to contact our experienced HR Expert, Ciara Carty, who will gladly assist you with any query you may have.
