Firms have to offer 'reasonable accommodation' to disabled staff - but what does that mean?

A RECENT DECISION from a Workplace Relations Commission adjudication officer found an employer had failed in its obligation to provide reasonable accommodation to an employee with a disability. We examine the facts of the case and the likely implications for employers.

In this case, the employer was ordered to return the employee to their payroll for six months and to pay the employee €15,000 in compensation for the “effects of the act of discrimination”.

During this six-month period, the unnamed parties were directed to “engage in direct and meaningful discussion” to find a reasonable and definitive resolution of the matter.

Background

The employee was diagnosed with epilepsy in 1997. However, he had not suffered an epileptic episode since 2001. The employee started working for the employer in 2004 in a ‘safety-critical role’. He did not disclose his pre-existing epilepsy condition prior to the commencement of his employment.

He continued in this role until January 2015, when he was certified as unfit for duty in respect of a health matter unrelated to his epilepsy. While engaging with the employer’s medical advisors about his January 2015 illness, the employee advised the employer’s medical officer for the first time of his pre-existing epilepsy condition.

The employer refused to allow the employee to return to work due to his “ongoing medical condition”.

In December 2015, the employer’s chief medical officer declared the employee fit to resume restricted duties and recommended alternative, non-safety critical work be made available. The employer contended that they began a trawl through alternative positions for the employee, all of which were deemed not to be feasible.

The employer submitted that they explored whether the employee could operate in a lone role using a ‘lone-person working device’, but the medical restrictions of his condition meant this was not possible.

Employment Equality Acts

The Employment Equality Acts 1998-2015 require an employer to “do what is reasonable to accommodate the needs of a person who had a disability by providing special treatment or facilities”.

However, an employer is not required to retain an individual in a position that the individual is not “fully competent and available to undertake” the duties attached to that position.

The question that provokes apprehension for employers is what lengths they must go to in order to fully comply with the responsibilities placed on them by the legislation in relation to providing reasonable accommodation.

The decision

In considering this issue, the adjudication officer was influenced by a recent High Court judgment, where the judge noted that the definition of “appropriate measures” in reasonable accommodation of a disability includes the adaption of both patterns of work time and distribution of tasks.

Overall, the officer found that a greater responsibility is now placed on employers to actively explore and consider any and all potential alternatives that may amount to “appropriate measures” to reasonably accommodate an employee with a disability.

The adjudication officer was not convinced that the employer’s efforts were as comprehensive as one might expect. He also found it unacceptable that the employer had allowed a stalemate to develop, resulting in financial difficulties for the employee.

These are some practical tips for employers arising from this case:

• It is vital to be able to show that efforts to explore potential alternative roles are thorough and comprehensive
• There must be evidence of engagement within the employer, in a direct and collaborative manner, to accommodate the employee
• The merits of the efforts made will be assessed by the size and diverse nature of the employer’s business
• It is not an acceptable excuse for an employer to say that they already redeployed other employees with disabilities to alternative roles and they have no room to accommodate the employee in question as a result.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

Nicola Sammon is an associate in the employment law and benefits team at Mason Hayes & Curran. This article was co-authored by Ger Connolly, a partner in the same team.

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