2013 saw some significant awards in disability discrimination cases. In the first case, the Equality Tribunal placed an emphasis on the proactive nature of an employer’s duty regarding reasonable accommodation*.
The Tribunal awarded €70,000 (1k short of the maximum 2 years' remuneration available) to a medical secretary when it found that her respondent employer had discriminated against her on the grounds of her disability in relation to her conditions of employment which included promotion opportunities. It also directed the respondent to provide suitable office accommodation and make arrangements to facilitate her return to work. The award is just shy of the maximum 2 years’ remuneration that is available under the jurisdiction of the Tribunal.
The claimant suffered from a debilitating and embarrassing bowel condition which necessitated her to have easy access to toilet facilities. Her office accommodation was changed which resulted in her not being as close to a toilet. As a result of this she was placed on sick leave. The medical evidence verified that she would be fit to return to work if she was provided with single office accommodation close to a toilet. The claimant made a number of requests for the above. The respondent claimed that it offered suitable alternative posts however the claimant was of the view that these were not suitable to her.
The Tribunal held that the respondent’s actions did not constitute reasonable accommodation. It reiterated the proactive nature of the duty of the employer in relation to the reasonable accommodation test and the duty an employer has to carry out an assessment of the particular disability and what accommodation might be made. This can extend to relieving the person from the duty to undertake certain kinds of work which may be beyond his or her capacity. The Tribunal went on to note that if as a result of this action a person’s chances of promotion are decreased, then an employer may need to consider what countervailing measures it may need to take to negate any possible disadvantage.
In another determination from 2013** the Tribunal awarded an employee €63,000 (which represents nearly 18 months' salary) after the Tribunal held that the respondent employer had discriminated against him on the grounds of his disability and failed to provide reasonable accommodation. Of note here was that the respondent's financial turnover was taken into account in assessing whether reasonable accommodation was provided.
The lesson from these cases is that the Tribunal will not uphold mere token gestures or lip service in relation to the reasonable accommodation requirement under the disability discrimination head. The equality legislation imposes an onerous burden on employers regarding their obligations in dealing with disabled employees. It is also interesting to note that the Tribunal took account of the financial position of the employer and rejected its submission that the proposed reasonable accommodation measures would have imposed a disproportionate burden on them.