The BC Ambulance Service failed in its duty to accommodate a paramedic who could no longer palpate a pulse because of his mulitple sclerosis. The employee’s manager was also held personally responsible.
That was the decision of the BC Human Rights Tribunal after the employer had won an earlier case on judicial review. We reported on the judicial review in an earlier post because it established the important principle that the duty to accommodate does not include an independent procedural duty. The matter was sent back to the Tribunal to reconsider, and with that second look, the result is worse for the employer and the manager.
The Tribunal determined that the disabled employee could have been accommodated as a “Driver Only” and “Special Driver Only” without undue hardship. Even though the Ambulance Service seeks to have both paramedics in each ambulance to be fully qualified, the fact is that there are 135 “Drivers Only” out of 2,500 part timers. The Tribunal noted the lack of evidence to show actual harm arising from not having both paramedics being able to palpate a pulse and concluded the addition of one Driver Only to an existing complement of 135 was statistically insignificant.
The case is also worthy of note for the finding against the manager. Many human rights complaints name both the employer and individual managers, but there are relatively few cases where individuals are found liable.
In this case, the manager was found to have actively thwarted efforts to find an accommodation and to have deliberately sought to prevent Cassidy from returning to work. The Tribunal commented more than once that the manager did not do the things expected of management when it is necessary to consider accommodation under the Human Rights Code.
Therein lies the good news for managers: If you approach accommodation issues objectively and neutrally, and apply a reasonable effort to the task, you are unlikely to be held personally responsible.