The Dangers of Failing to provide Reasonable Accommodation

by Greta Siskauskaite, Solicitor, Employment law at Fieldfisher LLP (Ireland)

The duty on an employer to provide reasonable accommodation to disabled employees is well-established and extensive.

Some requests for reasonable accommodation may be straightforward enough (such as providing office or other equipment) with a correspondingly relatively easy ability for an employer to comply.

A recent Workplace Relations Commission (“WRC”) decision awarded an employee (“the Complainant”) two years’ salary under the Employment Equality Acts 1998-2015 (“the Act”) for failure to implement low cost, straightforward recommendations.

Complainant’s position

In this recent case[1] against Kerry County Council (“the Employer”) the Complainant claimed that the Employer had failed to reasonably accommodate her in respect of her undisputed back difficulties, either in a timely fashion or at all, as recommended by her GP and medical experts.

A Physiotherapist engaged by the Employer to carry out an ergonomic assessment of the Complainant’s workstation recommended provision of certain equipment such as a chair, footrest, monitor arm, alternative mat and cable tidy.

The Complainant gave evidence on the accommodations she received around the chair, monitor arm and mat but said that the provided footrest was incorrect and the cable tidy and phone cable never arrived.

Further, the Complainant claimed that the Employer failed to reasonably accommodate her by refusing to place her on the work hours recommended by her GP.

She also claimed that she was treated less favourably than her (retired) colleague who also had a disability and who had been provided with necessary reasonable accommodation by the Employer.

Employer’s position

On the substantive case, the Employer made no submissions and called no witnesses. However, the Employer did avail of the opportunity to cross examine the Complainant during the hearing.

WRC Finding

The WRC Adjudicator found that the Employer fell “significantly short” in respect of its duties under the Act in not providing “low cost, straightforward recommendations” made by five different medical experts. She stated that these recommendations had been issued “repeatedly” over a 7-year period but had not been adopted by the Employer. The Employer’s failure to act over this period was described as “egregious”. The Adjudicator ultimately held that:

1. Given the significant emotional stress and financial loss caused to the Complainant, an award of €50,255 (two year’s salary) was appropriate;
2. The Employer was ordered to provide the Complainant with specified equipment as previously recommended by the Physio; and
3. The Employer was ordered to immediately implement the weekly working hours recommended by Complainant’s GP.

General Commentary

Reasonable accommodation requests must be taken seriously by employers and meaningful action must be taken when recommendations are received from medical and other experts. This case highlights the following issues for employers:

1. Employers must act promptly when assessing and/or implementing requests for reasonable accommodation of employees with disabilities;
2. The Daly v Nano Nagle Supreme Court decision clarified certain key principles in the area of disability discrimination law which encompasses a general requirement by employers to consider appropriate measures which could be undertaken to provide reasonable accommodation to employees;
3. A consideration of whether such measures would impose a “disproportionate burden” on an employer should also be considered. For larger and well-resourced employers, and particularly when the requested accommodations are reasonably straightforward, it will be difficult to show that such a disproportionate burden existed.

The theory relating to reasonable accommodation and disability discrimination law is relatively easy to state but can, in more complex factual situations, be difficult to apply. Therefore, employers are urged to seek advice where such issues arise.

[1] ADJ-00044745

About the author

Greta Siskauskaite specialises in the area of employment law and advises on both contentious and non-contentious employment matters at Fieldfisher LLP (Ireland).

Greta provides both commercial and best practice advice to employers and employees on all matters relating to employment law. This includes bringing/defending claims to the Workplace Relations Commission/Labour Court, advice on contracts and employee handbooks, internal company procedures, discrimination, redundancy and TUPE.

Greta’s experience includes assisting both private and public sector clients.
Greta regularly attends Employment Law Seminars to ensure that she remains up to date on relevant legislative developments.

Greta hold’s a Bachelor of Business and Law Degree from NUIM and a Diploma in Employment Law from the Law Society of Ireland.