The Workplace Relations Commission (WRC) has ordered the re- engagement of an employee for a six month period and that the employer pay the employee €15K for the effects of the discrimination. The WRC held that there had been a failure to engage between the parties in relation to reasonably accommodating the employee.
The case highlights again the scope of the obligation on an employer in relation to reasonably accommodating a disabled employee. It may extend to a redistribution or even elimination of certain tasks of the disabled employee.
The case also reminds us of the powers of Adjudication Officers (AOs) under employment equality legislation. It can extend beyond awards of compensation to intervening in what is essentially a private law matter - the employer/ employee relationship.
The claimant worked in a safety critical role. He was declared unfit for work as a result of a health matter unrelated to his disability at the heart of these proceedings. A pre-existing epileptic condition was revealed while engaging with the respondent's medical advisers. However he had not suffered an epileptic fit for a number of years as the condition was controlled with medication.
When he was declared fit to resume duties on a restricted basis the employer submitted he was unfit to continue in his safety critical role. The Chief Medical Officer requested that alternative non safety critical work be made available. The respondent looked at a number of options however none of them were considered feasible. The medical restrictions placed on the claimant meant that he was not allowed to work in a safety critical position on his own. This limited the number of potential alternatives open to him.
The WRC was heavily influenced by the High Court decision in Nano Nagle v Daly where the court held that the employer's insistence that the claimant perform all of the duties attached to her previous role which she could not now do was erroneous. Applying the rationale from the above case the AO said that ".. an even greater responsibility is now being placed on employers to actively explore and consider any and all potential alternatives.. so as to reasonably accommodate an employee with a disability." The AO was not satisfied that the effort to explore potential alternatives was as thorough and comprehensive as might be expected in the circumstances. He directed that the claimant be returned to the respondent's payroll for six months to see if a meaningful resolution to the stalemate could be achieved.
The case reiterates the onerous duty on employers in considering their duty to reasonably accommodate disabled claimants. The full ambit of this duty however has not yet been clarified. The High Court in Nano Nagle rowed back from the heavy burden placed on employers on foot of the Labour Court decision which suggested that a redesign or a new role may need to be considered. The High Court stopped short of endorsing this proposition. Both the Labour Court and High Court decisions have been cited on a number of occasions by the WRC and Labour Court this year. It is fair to say that further judicial guidance is required to establish what exactly is required of employers.
For now it is clear that employers should be able to demonstrate the following:
- Evidence that they have considered alternative roles. This should be done in collaboration with the employee taking on board their views and also the available medical evidence.
- The consideration of alternative roles should be supported by documentary evidence where possible.
- Alternative roles may involve looking at the adaptation or redistribution of tasks however this does not extend to creating a new role.
- The employer's efforts in considering alternative roles will be judged by reference to the size of the organisation and the financial resources available to them..