A recent decision of the Workplace Relations Commission (ADJ-00011821) emphasises the importance of employers’ statutory obligations to employees with disabilities.
In particular, it highlights the importance of meaningful engagement with an employee who makes a request for reasonable accommodation, the need to fully and properly assess all of the available options and to objectively assess what is being sought in the broad context of the employment relationship.
In this case, the complainant, a solicitor who suffers from epilepsy, made six requests to work from home one day per week in order to allow her to manage her epilepsy. The requests were made between March 2015 and January 2017. In making the requests, the complainant claimed she was seeking a form of reasonable accommodation during a period when her health was deteriorating and she was at risk of ‘grand mal’ attacks.
The employee’s disability was not disputed nor was her competency to discharge her functions. The issue under consideration was whether the accommodation sought would reduce stress on the employee, thereby reducing the risk of another attack with possible life-threatening consequences. The employee obtained medical advice from a neurologist to the effect that any measure that reduced her stress and fatigue within the limits of her work, should be accommodated. However, an independent medical practitioner engaged by her employer was of the view that the reduction in stress would be “minimal”. The employer also argued that it had facilitated her disability by agreeing to a shorter working week.
In refusing the employee’s request to work from home one day per week, the employer maintained that working from home would be incompatible with the employee’s ‘frontline’ job functions. In contrast, the employee asserted that she had ‘huge autonomy’ in her duties and her employer was aware that she was willing to be entirely flexible and respond to business needs as required. The employee also stated that much of her work was of a preparatory nature and could just as easily be performed from home as her office.
The Adjudication Officer acknowledged the unusual nature of the accommodation being sought in this case:
“Unusually, the accommodation being sought is, in a way a negative, or at least something with an uncertain connection to the objective; it is aimed at reducing the possibility of a further epileptic attack.
In other cases, the significance of providing the accommodation is more foreseeable or less unpredictable; a matter of creating physical facilities or circumstances in which a person is enabled to perform the job by providing support or removing obstacles to their full performance, and whose efficacy is either immediately obvious or can reasonably be predicted.
In that sense, reasonable accommodation is a positive, facilitative provision to enable tasks to be more easily accomplished. But I see no reason why the removal of an obstacle to the objectives outlined in the Act should be regarded as any different.”
The Adjudication Officer found that the employer failed to provide the employee with reasonable accommodation for her disability in circumstances where the employer:
» did not properly consider her application to work from home one day per week even before it received its independent medical report; and
» failed to rigorously evaluate the possible impact on the employee after receiving the employee’s medical report. The Adjudication Officer accepted that the nature of the employee’s work and her attitude to flexibility would permit her to work from home and that the employer’s objection seemed to be a matter of policy.
The Adjudication Officer considered that “making a minimal impact on the possibility of avoiding a life-threatening event is, to put it very mildly ‘a reasonable accommodation’. There should be a zero-risk approach in such a situation”. The employer seemed either content to accept, or was indifferent to, a risk arising from the ‘minimal’ impact assessment, despite the possibility of a catastrophic outcome for the employee. The failure of the employer to take this into account was found to be a breach of its obligations under the Act. The employee was awarded €30,000.
The decision highlights the importance of meaningful engagement with an employee who makes a request for reasonable accommodation. Failure to fully and properly assess all available options will result in an employer falling short of its obligation under the Employment Equality Acts to provide reasonable accommodation to employees with disabilities.