The Labour Court has recently upheld a decision of a WRC adjudication officer which found that an employer (a major retailer in Ireland) discriminated against an employee on the ground of disability and failed to provide her with reasonable accommodation to permit her return to work in May 2013.
The employee went on sick leave in April 2012 and the employer was advised that she had been diagnosed with an optic neuritis, secondary to Multiple Sclerosis. In February 2013 the employee was referred to an occupational health advisor, who concluded that she would be fit to return to work shortly. The employee’s GP certified her as fit to return to work in April 2013, however this was conditional on the employee being limited to light work in a different area of the store. Meetings and correspondence between the parties ensued and management maintained that the employee would need to be fit to resume her existing role in the bakery in order to return to work. The employee did not return to work due to the employer’s refusal to provide alternative duties. The store ultimately closed in August 2013 and the employee was made redundant.
Section 16 of the Employment Equality Acts 1998 to 2015 provides that an employer is not required to retain an employee if he/she “is not fully competent” and “fully capable” of undertaking their duties. However, an employee with a disability must be regarded as fully competent and capable if the employer can take “appropriate measures” which would enable the employee to perform their role. This well established principle is known as reasonable accommodation. Appropriate measures must be taken, unless it would impose a disproportionate burden on the employer. At the hearing, the employer argued that the employee’s duties were not capable of alteration and there was no alternative role available for her.
The Labour Court referred to the necessity to conduct a two-stage enquiry. Firstly, the employer must examine the factual position i.e. the degree of impairment and the likely duration (which requires a consideration of the medical evidence). Secondly, where an employee is not fully capable, the employer must consider what special treatment or facilities can be made available. An employee must be given a full opportunity to participate in the review and to provide medical evidence. The Labour Court endorsed the approach taken in Nano Nagle School v Marie Daly  IEHC 785, where the High Court indicated that the duty to provide reasonable accommodation may require the reallocation of tasks in certain circumstances. If an employee is unable to perform certain functions, the employer should consider the feasibility of redistributing these tasks.
The Labour Court found that where an employer fails to properly consider all of the options that may be available, “the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate.” In this case, the employer’s failure to consider the options was fatal to its defence of the claim. This decision reminds employers of the onerous burden in reasonable accommodation cases. It emphasises the importance of meaningful HR procedures before making conclusions that affect an employee’s ability to return to work or to remain employed and, particularly, the need to fully consider the availability of “appropriate measures” in all cases.
A full copy of the decision can be viewed here.
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