Speedread

A recent determination (ADJ – 00000557) from the Workplace Relations Commission (the WRC) provides further insight and guidance for employers on the scope of their duty to reasonably accommodate a disabled employee.

It also clarifies that a collective agreement between the employer and union does not take precedence over an employer's statutory obligations towards an employee.

Recap –the legal position

Section 16 of the Employment Equality Acts 1998-2015 (the EEAs) requires an employer to "do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities". However, an employer is not required to retain an individual in a position if that individual is not "fully competent and available to undertake" the duties attached to that position. The question to be considered, therefore, is to what lengths must an employer go to discharge this statutory duty?

What happened in this case?

The claimant was a manufacturing operative with a multinational company who worked on a shift cycle basis for nine years before becoming ill with depression. She was absent from work for about 10 months between 2014 and 2015 as a result of depression.

What were the claimant's arguments?

Central to the claimant's claim, which she also confirmed in her oral evidence, was that the work pattern which the respondent company operated, consisting of a mixture of day and night shifts, caused the claimant to develop a significant sleep debt. This greatly exacerbated her depression and she gave evidence that she felt permanently "jetlagged". Medical evidence recommended that the claimant could return to work but only working a day shift pattern.

What did the company argue?

The respondent company did not dispute that the claimant suffered from depression, or that depression was a disability within the meaning of EEAs. However the respondent advanced two key arguments/grounds of defence:

  • That it was bound by the contents of the collective agreement in place regarding the transfer policy on day shifts;
  • And in relation to its duty to accommodate, it was limited by financial resources.

The collective agreement

The company operated a transfer system under a company-union agreement dating back to 1976 to ensure fairness to access to day-only shifts, and that submitted that "disability would not put you on top of the list automatically". There was great competition for these shifts. The respondent treated the matter as a normal transfer request in line with its union agreement rather than as a statutory obligation. The respondent cited the agreement with the union and an earlier unreferenced Labour Court recommendation under the Industrial Relations Act in support of its argument why the collective agreement had precedence over the claimant's statutory rights.

Financial burden

Regarding the financial burden point the company said that notwithstanding that it was a multinational with world-wide revenues of in excess of €3-4 billion, the Irish operation was under threat.

Decision

The Adjudication Officer (the AO) found the respondent was wrong to treat the medically identified need of the claimant to be accommodated with daytime work for a time as being on par with its normal transfer policy. The AO relied on the High Court judgment in Mullaly & Ors v The Labour Court [2016] IEHC 291, which found not only was a Labour Court recommendation, under section 20(1) of the Industrial Relations Act 1969, not legally binding, but also that such a recommendation does not create "any form of res judicata or any other form of binding resolution". The AO reiterated that the duty on an employer to provide reasonable accommodation was not a discretionary one which arises at the convenience of the employer as to whether a suitable role is available at any given time. On that basis the AO found that the respondent refused the claimant reasonable accommodation.

The AO then looked at whether the respondent employer could avail of the savour in Section 16(3)(c) of the Acts, which limits an employer's obligation to reasonably accommodate an employee if it would involve a disproportionate financial burden. The respondent company had provided evidence of their worldwide revenue (which was the region of €3-4 billion) but it had not provided any evidence of its Irish operations and also alleged that it did not have the means to provide reasonable accommodation. The AO found that it would not be a disproportionate financial burden to provide training to the complainant to perform a day-shift role, and to hire a replacement for her in her current position. Accordingly, the respondent was ordered to pay the claimant €20,000, the equivalent of just under 9 months' pay, in compensation for the effects of discrimination.

Takeaways

The case is useful for employers as it serves as a reminder for employers of the scope of the duty to reasonable accommodate a disabled employee and that employers cannot adopt an "a la carte" approach to reasonable accommodation. A prudent employer should be mindful to take steps to actively explore and consider any and all potential alternatives that may amount to "appropriate measures" (unless those measures would impose a disproportionate burden on the employer) so as to reasonably accommodate an employee with a disability.

It also reiterates a useful point regarding any collective agreements in place in a business and that they do not take precedence over a claimant's statutory rights.