Legal

Reasonable Accommodation – How Far Do Employers Need To Go?Two recent decisions of the Workplace Relations Commission (the WRC) serve as a useful reminder to employers on how best to provide for an employee or candidate for employment who may require accommodation and guidance to employers on what 'reasonable accommodation' really means.

The Employment Equality Acts 1998 – 2015 (the 'EEA') outlaw discrimination based on 9 grounds, including the disability ground.  Under the Act employers are obliged to make reasonable accommodation for staff with disabilities which includes the provision of access to employment. Aggrieved employees/ potential employees can bring a claim to the WRC and can be awarded up to 2 years' remuneration by way of compensation or a maximum of €15,000 for employee candidates.

Case 1 – Research must be grounded on facts, not google searches

This case involved a complainant who had dyspraxia, who commenced employment as an Aircraft Service Agent. Although he did not disclose that he had dyspraxia in the course of his first medical assessment, he was brought in for a second medical assessment when it was noticed that he was walking with a slight limp. In the second assessment, the complainant disclosed that he had dyspraxia. He was subsequently recommended for employment with 'task restrictions' but his position was terminated shortly after this.

Following his dismissal, a report was written by the Health and Safety Officer on the complainant. The Health and Safety Officer stated that his research was based on a Google search on dyspraxia. The report was compiled without any input from the complainant.

The Adjudication Officer ('AO') held that employers have a duty to make adequate enquiries to establish fully the factual position in relation to an employee's capacity. At a minimum, an employer should ensure that it is in full possession of the facts concerning the employee's condition and that, where relevant, the employee is given fair notice that the question for his/ her dismissal due to capacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision and to participate in the process.

In this case, the AO was satisfied that the report was grounded on assumptions and generalisations about persons with dyspraxia and not grounded on actual facts about the complainant's specific condition. Employers must be alert to the possibility that a person with a disability may suffer discrimination not because they suffer from a disability per se, but because they are perceived to be less capable than a person without a disability. Employers must always be alert to the possibility of unconscious or inadvertent discrimination.

The complainant was awarded €15,000.

Case 2 – Employers must demonstrate openness to candidates at interview

In this case the complainant submitted that his interviewer had chosen to focus on the fact that he was deaf instead of on his skills and experience. The complainant also submitted that the immediate focus on his disability was grossly discriminatory and, in his opinion, the remainder of the interview was tainted as a result. The complainant felt he was being asked to defend his belief that he could work safely in the workplace during the hearing, the respondent conceded that the complainant was the only candidate whom she asked how he would work safely in the workplace.

The AO accepted that the issue of reasonable accommodation was not discussed and/or explored in the course of the interview. There was a 'staggering gap' between the employer's proposition that she was 'intrigued' to know how a deaf person could be assimilated into the workplace and the actual steps she took to appraise how this would work in the workplace.

The AO found that the employer had shown no actual intention of providing reasonable accommodation for the worker's disability and held that "there is an obligation on employers to demonstrate an openness to candidates of all abilities" so that all candidates of equal merit have a fair opportunity to compete.

The complainant was awarded €5,500.

Lesson for Employers

These two recent cases serve as a reminder to employers that best practices must be both in place and put into practice at all stages of the recruitment process. An employer must be proactive in considering the forms of suitable reasonable accommodation where a candidate or employee has a disability. Irish case law recommends a two-stage enquiry. First, an employer must look at the factual position concerning the employee's capability. Secondly, if it is apparent that the employee is not fully capable, the employer must consider what, if any, special treatment or facilities or accommodation may be available by which the employee can become fully capable. The employee concerned should be allowed a full opportunity to participate at each level of this review and present medical evidence and submissions, where relevant. 

These cases also serve to highlight the importance of involvement from the employee with regards to how best to accommodate for disability. In the first case, the complainant was afforded no opportunity to be involved in the assessment and reporting process, to the extent that a report was compiled without the author even having met the complainant. In the second case, the complainant was involved in the process but evidence was submitted that the employer had come to a pre-determined conclusion and was simply involving the complainant in a box ticking exercise. Therefore, mere involvement with no real intent of providing reasonable accommodation for the potential employee will not suffice..

Contributed by: Therese Chambers of William Fry.