Reasonable accommodation - how much is enough?
What is reasonable accommodation?
Reasonable accommodation essentially means that an employer must do all that is reasonable in order to accommodate the needs of a person with a disability. Reasonable adjustments can take many forms, some with a cost to the organisation and some without cost. The level of accommodation in making a job or workplace accessible varies greatly and can include the adaptation of working time, premises or equipment. It can also involve the distribution of tasks in a different manner. It does not, however, include any facility that the individual with a disability might ordinarily provide for himself or herself. The Act states that these appropriate measures must be taken unless it would impose a disproportionate burden on the employer.
Exhausting all avenues
The 2015 case of Nano Nagle School v Marie Daly [2015] IEHC 785 explored the idea of reasonable accommodation in depth. This case came before the High Court on appeal from the Labour Court. In this case the claimant, Ms Daly, was employed as a special needs assistant (SNA) in Nano Nagle school which is a special school catering for children with varying degrees of disability. In 2010, Ms Daly was involved in a serious accident which left her paralysed from the waist down and wheelchair bound. In January 2011, when Ms Daly felt that she was ready to return to work, the school advised her that she would first need to be assessed by an occupational health specialist. Following this assessment, it was advised that Ms Daly was capable of carrying out 9 of the 16 duties required for the role of an SNA. It was also suggested that Ms Daly could act as a ‘floating SNA’ which would necessitate the reorganisation of the duties of other SNAs within the school.
On foot of this, the school dismissed Ms Daly on the basis that she lacked the capacity to carry out the full extent of an SNA’s duties. Of significant importance is that the potential alternative options to reasonably accommodate Ms Daly’s return to work were not discussed with her or the other 26 SNA’s employed within the school.
Ms Daly made a successful appeal to the Labour Court on the matter, awarding her €40,000. The Labour Court outlined that the school had misinterpreted the meaning of section 16 of the Act to mean that if they were not in a position to make adjustments that allowed Ms Daly to carry out the entirety of her role as opposed to the essential duties, then they had no other option but to dismiss her. The Labour Court stated that this understanding of the Act was incorrect. In addition, the Labour Court was of the view that the school did not give any consideration to the possibility of Ms Daly taking up the role as a ‘floating SNA’.
The school appealed the decision of the Labour Court to the High Court. The High Court found that the school’s view that Ms Daly did not have the capability of performing all duties associated with her role was hugely flawed. In relation to this, Justice Noonan found: “were the school's position correct, it would seem difficult to envisage any circumstances in which a person suffering from a disability could be reasonably accommodated.” Moreover, the High Court ruled that reasonable accommodation extended to altering the hours of work and the distribution of tasks, provided it did not impose a disproportionate burden on the employer. This alteration included a reduction of the particular tasks required of the employee. In summary, the High Court found that the school failed to consider the reorganisation of Ms Daly’s tasks as an SNA and therefore was in breach of the Employment Equality Act. The decision of the Labour Court was upheld.
This case clearly shows that in order to demonstrate that an employer has exhausted its obligations under the legislation, it must show that, where possible, it has explored all potential avenues to reasonably accommodate the employee. This involves discussing options with management and any affected employees, which in this case would have been the other 26 SNAs in the school. It can be seen from this case that failure to do so may constitute discrimination on the grounds of disability under the Employment Equality Acts 1998 to 2015.
Change in shift pattern
A recent case, that of adj-00000557 March 2017, which came before the Workplace Relations Commission (WRC) on 22nd November 2016 further emphasised the importance of fully examining all the alternative work options for an employee with a disability. The WRC heard that the worker had started working with the company as a manufacturing operative in 2005. The company operated on a 24/7 basis and therefore the employee worked a shift cycle alternating between days, on-call and night shifts. She fell ill with depression in 2014 and was absent from work on sick leave for over 9 months. The worker gave evidence that she felt “constantly jetlagged” as a result of the shift cycle. She attended the firm’s occupational health specialist who advised the company that the employee could return to work provided that she could be accommodated by working day shifts.
The company discussed this with the employee concerned and advised her that in line with the organisation’s collective agreement and a Labour Court recommendation, she would have to apply and interview for any day shift positions that arose like all other employees. Her disability was not going to be taken into account. The worker applied for such positions but was unsuccessful.
The WRC found that a change in shift patterns did amount to reasonable accommodation in line with the Employment Equality Acts. The Adjudication Officer further ruled that the Labour Court’s recommendation and the collective agreement in which the respondent sought to rely could not be afforded more weight than the claimant’s statutory rights under equality legislation. The Adjudication Officer stated that it was “wrong of the respondent to treat the medically identified need of the complainant to be accommodated with daytime work for a time as being on par with its normal transfer policy and I am satisfied that the respondent did refuse the complainant the reasonable accommodation she is entitled to pursuant to the provisions of Section 16 of the Employment Equality Acts.”
The WRC held that the claimant had been discriminated against on the grounds of disability and awarded her compensation of €20,000.
What is noteworthy about this case is that, not only were there day shift positions available within the organisation, but placing the worker within one of these positions would not have resulted in a disproportionate burden for the employer. This is what resulted in a substantial award for the employee. Employers need to be cautious when accommodating an employee with a disability and encourage a culture of ‘positive action’ towards employees with disabilities. Under the Acts, ‘positive action’ means that an employer can take steps that are not required under the law to promote equality for all their workers. In this case ‘positive action’ would have been offering this employee a position on day shifts without going through the interview process.
Perfect accommodation
The Labour Court recently upheld the decision of an Equality Officer in determining that Dunnes Stores did not discriminate against an employee who had a hearing impairment.
The worker in question commenced employment with Dunnes Stores as a Sales Assistant in 2003. She fell ill in July 2013 and returned to work in November 2013 following a period of sick leave from which she suffered hearing loss. She supplied a medical certificate outlining that she was fit to return to work. The certificate did not contain any details regarding restrictions in terms of the employee’s capacity to carry out the role. She submitted to the Court that her then employer failed to reasonably accommodate her in respect of her disability in numerous ways. In the first instance, she claimed that the company’s policy of calling employees over the ‘tannoy system’ was discriminatory as the employer knew that she was unable to hear the announcements. In addition, she outlined that she had difficulty communicating with management at a meeting following which, her solicitor proposed that a member of the group ‘Deaf/Hear’ be permitted to assist her in such meetings. The respondent refused this request stating that it was not practicable.
The company submitted that at all times they treated the worker reasonably in relation to her ailment. She was facilitated with shorter working hours on request despite her tendering a medical certificate stating that she was fit to return to work at her regular hours. When requested by the employee not be called over the ‘tannoy system’, the request was immediately complied with. The company explained that, as meetings held with the worker tended to arise at short notice i.e. meetings in relation to active customer queries etc., it was not suitable to await the presence of an external party from Deaf/Hear to be present. That said, on receipt of this request for support by Deaf/Hear the company had arranged for the employee to be assessed by its occupational health specialist. This assessment advised that no special supports were required for the employee when meeting with management, only that such meetings should take place in a quiet room. The company told the Court that on various occasions the employee concerned had raised certain matters including her challenge in taking medication and on each occasion, she had been provided with the accommodations and facilities sought. Finally, the company confirmed that the worker had always demonstrated full capability and competence in her job.
The Court outlined that it was clear that numerous interactions took place between the former employee and the company following her return from sick leave and that various adjustments to her working hours and conditions arose as a result of those interactions. The Court further noted that the employee had not put forward any evidence of incapacity on her part to carry out the duties and functions of her role as a sales assistant. She had returned to work on the basis of medical certification which declared her fit to work. When she sought an accommodation other than an adaption to working hours the respondent sought medical advice. In addition to this, the company always responded to the medical advice supplied. In its decision, the Court found that “no failure of the employer to take appropriate measures in accordance with Section 16(3)(b) of the Act inhibited the capability of the worker to participate in her employment.” The Court ruled in favour of the company. Interestingly, when this case came before an Equality Officer it was stated that it is not incumbent upon a respondent to provide ‘perfect accommodation’, it simply needs to be what is ‘reasonable’ given the circumstances.
It is evident from this case (Dec-E2016-119, April 2017) that an employer can only go as far as medical opinion will allow when putting ‘appropriate measures’ in place. As this individual was declared ‘fit to work’, the obligation was not on the employer to provider reasonable accommodation. However, Dunnes Stores went beyond its statutory obligations in this instance by allowing the employee to change her working hours even though her GP had advised of no accommodations that needed to be made.
Dismissal while on long term sick leave
Carroll v H.J Heinz Frozen & Chilled Foods Limited, Dec-E2011-114, December 2011, dealt with the issue of disability and long term sick leave. Similar to the above case, it was deemed that the employer did not discriminate against the claimant in relation to the provision of reasonable accommodation. This case clearly lays out the actions that an employer should take when dealing with employees who are out sick on a long-term basis. The claimant, Ms Carroll, was employed by Heinz initially in the bakery department and following this in the chilled food department which involved lifting up to 25kgs. She went out sick in March 2004 with repetitive strain injury. Coupled with this, the employee was diagnosed with fibromyalgia. The worker’s medical advice, which the respondent had been kept fully informed of, was that she could only work in temperatures of 18 to 20 degrees and could not lift weights or do shift work. On foot of this advice, the company was of the view that even if her skills were updated the company had no positions to offer her due to the fact that they had just lost 14 staff as a result of a company restructure. The worker was subsequently dismissed.
- Ms Carrroll took a claim under the Employment Equality Acts outlining that her employer had failed to provide her with reasonable accommodation in that there was no investigation carried out to find out what appropriate measures could be put in place in order to allow her to fulfil her original role or carry out an alternative role. The respondent stated that the decision to dismiss the employee was taken only after huge efforts were made to put measures in place to accommodate the employee’s needs. The company took an exhaustive number of steps in order to aid Ms Carroll’s return to work.
- In the first instance, the employee was placed on reduced hours on the occupational health specialist’s advice. The claimant was informed of the new working arrangements and that the company expected her back to work in October 2004. The company did not receive a response to this letter until after the expected date of return, to which Ms Carroll sent a medical certificate from her own GP outlining that she would not be fit to return to work until the New Year. Furthermore, it was outlined that the employee could only work in temperatures of between 18 to 20 degrees. It was found at this stage that any role that was not in a cold environment involved heavy lifting which would not have been suitable for Ms Carroll.
- Subsequently, the company’s occupational health specialist carried out a virtual tour with the employee and identified a number of areas within the organisation which were suitable to the employee’s specific needs. Unfortunately, at this time, there were no vacancies in these areas.
- Ms Carroll’s manager drew her attention to a number of positions in the production line which were in temperatures of 8 to 10 degrees and may be suitable if protective clothing was worn. Again, the claimant’s GP advised that this temperature was unsuitable.
- Following this, Ms Carroll went on maternity leave between March 2006 and March 2007. In March 2007, the employee attended a meeting with HR and her union representative to discuss a possible return to work. In a letter to the respondent from the employees GP, the weight and temperature restrictions were reaffirmed. At this time, there were no vacancies which could accommodate the employee’s needs.
- The respondent met with the employee again in April 2007 and May 2007. At this stage, the employer pointed out to Ms Carroll that she was on sick leave for the last 3 years and in that time no suitable vacancies had arisen that would suit her restrictions. The company advised the employee that taking all matters into account, the company was left with no other option but to terminate her contract of employment. Ms Carroll appealed this decision however the decision to dismiss was upheld.
The Equality Officer outlined that the Act is clear in that an employer is not required to recruit or retain an individual in a role or to provide training to an individual in relation to a role if the individual is not fully competent or capable of undertaking the role. It was established that the respondent had examined all potential options in relation to what appropriate measures could be put in place to allow Ms Carroll to return to work. An administrative position would have been suitable for the employee, given the temperature restrictions, however there were unfortunately no such roles available. Finally, it was concluded that it was clear that the employee no longer had the capability of performing her role in the chilled area due to her specific medical condition and the dismissal was lawful.
This case clearly illustrates the approach that is needed by an employer when an employee is out on long term sick leave. An employer is advised to handle these situations in an impartial and consistent way. Heinz in this case could prove the lengths that they had went to in trying to reasonably accommodate Ms Carroll.They had taken minutes of all meetings with the employee. In addition to this, they had sent numerous emails to all department heads within the organisation to see if any suitable work could be found for Ms Carroll given that she could not work in a cold environment and could not lift heavy weights.
Conclusion
The case law summarised above demonstrates how important it is for employers to understand what is meant by reasonable accommodation and how to apply the principle to certain situations. Employers will also be keenly aware of the company’s obligation to provide reasonable accommodation measured against the resources available to the business. An employer might not have to provide appropriate measures if it means that the employer would suffer a ‘disproportionate burden’ as a result. When determining what a ‘disproportionate burden’ is for an employer a number of things are viewed:
- The financial cost of the measures involved
- Other costs involved e.g. staff time or impact on productivity
- The size and financial resources of the business
If none of the above are problematic for the employer then appropriate measures should be put in place. This will not only allow the employee to perform successfully in their role but will also avoid any potential litigation under the Employment Equality Acts 1998 to 2015.
Briana Duffy
Employer Relations Executive, Ibec
Tuesday, 17 October 2017