by Anne O’Connell, Founder and Principal at AOC Solicitors
The recent decision of the WRC in the case of Victorine Neuray v LIRG5 Ltd, ADJ-00029639 highlights the importance of an employee having to first put an employer on notice of the fact that they have a disability before claiming a right to reasonable accommodation.
This case involved complaints that the Complainant and her husband are both persons with disabilities and that the Respondent (whom the Complainant had worked for in a clerical post from 2007 to July 2020) failed to provide her with reasonable accommodation under Section 16 of the Employment Equality Acts (“The Acts”).
At the centre of matters which led to the complaint before the Adjudicator was the decision of the Respondent to move their business premises from Castlebar, Co. Mayo to Knock, Co. Mayo in 2020.
The Complainant argued that when she took up her role with the Respondent in 2007, she was conscious of her husband’s health and that she refused to sign up to terms and conditions of employment that included a possibility of her being required to work at another location. Among other things, the Complainant also claimed that when staff first learned of the proposed move in February, 2020 they were shocked and that the concern was the length of travel time. She described her health problems and those of her husband. She submitted a grievance and the Respondent engaged a named consultant to deal with the grievance. This did not appear to resolve matters and there was correspondence over various matters between the Complainant and the Respondent.
The communications included among other things, some exchanges around the possibility of part time working but there was dispute over the terms of this.
It seems that there were a number of complaints in this case concerning various matters including among other things contract claims, carer claims, cost claims, a redundancy claim and a claimed dismissal. However, ultimately a complaint pursuant to the Employment Equality Acts came before the WRC for Adjudication.
In evidence, the Complainant gave some detail of her husband’s disability. In particular, she referred to the need for her to be available if he required her in an emergency and at short notice. She also spoke about her own health difficulties and medical advice that she should not do too much driving.
Much of the Adjudicator’s decision in this matter focused on the question of whether the Respondent was or was not on notice of a disability on the part of the Complainant.
In respect of the Complainant’s claim that her husband has a disability, the Adjudicator concluded that there is nothing in the legislation which provides for Section 16 of the Act to be triggered because a person related to the employee, but who is not themselves an employee has a disability. The Adjudicator agreed with the contention of the Respondent that seeking to bring the Complainant within the scope of Section 16 of the Act in relying on her husband’s disability, is not stateable in law.
Having determined this point, the Adjudicator then examined the aspect of the complaint related to a failure to provide a reasonable accommodation based on the Complainant’s own disability. While references had been made to the Complainant’s health, the Adjudicator took the view that those references were vague and general and an add on to the primary concern of her role as a carer to her husband.
The Adjudicator determined that there was no clear-cut request for a reasonable accommodation based on a disability on the part of the Complainant. The Adjudicator commented that the Complainant was engaging with medical advisers over the period March to August, 2020 and sending in medical certificates and she was taking legal advice on her situation and that it was not unreasonable to conclude that if she had medical advice available confirming she had a disability that would qualify for use of that ground under the Acts, that she would have provided it to the employer, and she failed to do so.
The Adjudicator placed importance on this evidence as it allows an employer to consider the situation fully and decide if the person is fit for work at all and/or to obtain their own medical assessment before offering a reasonable accommodation. The Adjudicator determined that the Employer in this case never had that medical information and that they were entitled to same if the employee was claiming the application of Section 16 of the Acts.
The Adjudicator specifically stated that in concluding there never was a claim for a reasonable accommodation within the terms of Section 16 of the Acts, she did so not doubting that the Complainant did have some health issues but that at no stage did she make a claim of a disability that contained the medical grounds why she was unable to commute the extra distance or work full time and neither did she provide any medical evidence to support such a claim.
The Adjudicator concluded that the Complainant had failed to establish facts which support a complaint that she was discriminated against on the disability ground by way of a failure to provide her with a reasonable accommodation as provided for in Section 16 of the Acts.
Takeaway for the Employers:
The Adjudicator made an interesting comment as follows in respect of an individual asserting a right to reasonable accommodation:
“The terms of the Directive and the enabling legislation providing for a reasonable accommodation-are not inactive provisions, they provide a positive onus on employers to do what is reasonable and proportionate to enable the participation of disabled persons in the workforce. It follows therefore that while some employers may take an initiative to facilitate a person with a disability – there is at least an equal onus on the same person to indicate they are seeking to trigger their entitlements under the legislation – even if it is only to use the term or to say they have a disability but are seeking to for example resume work”.
In this decision the Adjudicator’s decision placed an expectation on the employee to have at least put the employer on notice of a disability before claiming a right to reasonable accommodation. However, employers should consider these matters on a case by case basis and seek appropriate legal advice where necessary as the facts of each case will differ and it is important that an employer engages with the facts in front of it rather than applying a once size fits all approach.
About the author
Qualified as a Solicitor in 2001 and as a New York Attorney, Anne O’Connell, the Founder and Principal of AOC Solicitors, specializes in Employment Law. She holds an LLB Degree together with Diplomas in Employment Law and International Litigation and has practiced with the Chief State Solicitors Office and two top tier Irish Law Firms. Anne has acted in the largest international case taken by Ireland to date and also acted in a European case that led to the amendment to Ireland’s Constitution. Anne advises large multinational companies, semi-state companies, small businesses and employees in all areas of employment law, particularly issues that were likely to become contentious.
With over 19 years of employment law experience, Anne formed her own specialist boutique Employment Law Firm in 2017 and thus Anne O’Connell Solicitors was born.
Anne is very passionate about what she does and becomes vested in finding solution to her client’s issues.