Reasonable Accommodation

Background 

A complaint for failure to provide reasonable accommodation under the Employment Equality Acts 1998-2015 (the “Acts”) was brought by an employee (the “Complainant”), a Garda of An Garda Síochána (the “Respondent”), who had previously lost 70% of his vision in his eye from an assault in 2014 while on duty. Following the assault he subsequently returned to work after being deemed fit to so in 2015. The chief medical officer (“CMO”) of the Respondent passed him fit to work on certain duties on the basis that the duties assigned to him would not have a foreseeable risk of confrontation.

Between 2015-2019, he worked in several successful positions, such as training and advisory, under three previous Garda superintendents. However, upon returning from sick leave after an eye operation in 2019, the Garda superintendent at this time informed him that he was no longer permitted to engage in such work duties as driving, training or being in uniform in public. This was on the basis of the superintendent’s interpretation of the meaning of “non-confrontational”.

Ultimately, the Complainant took sick leave for a six-month period due to the negative health impacts experienced from a failure to receive ongoing reasonable accommodation for his disability.

WRC Decision 

In forming his decision, the WRC Adjudication Officer (“AO”) noted that the Complainant had previously been deemed fit for work by the CMO on both occasions after returning from sick leave. He received continuous support from the three previous superintendents and was able to carry out his responsibilities and duties with the same degree of competence as before his injury in 2014.

However, he went on to state that “these reasonable accommodations were withdrawn by Superintendent Gamble on the second return to work. Treating similar situations differently can give rise to discrimination.”

The AO took the view that the superintendent should have engaged with his predecessors, and noted that while it was not legal requirement to do so, they should have consulted with the Complainant in relation to what he could/could not do prior to making any decisions.

On the above basis, the Complainant was awarded €65,000.00 in compensation.

Griffin v Bus Átha Cliath (Dublin Bus) – ADJ-00029733

The full decision is available here.

Background

An employee (the “Complainant”) who worked as a bus driver for Dublin Bus (the “Respondent”) brought a discrimination complaint under the Acts to the WRC in relation to an alleged failure by the Respondent to reasonably accommodate his sleep apnoea. The Complainant worked a day shift for a period of five years in order to facilitate his disability. It was accepted that this facilitation was recommended by the Respondent’s onsite doctor upon being diagnosed, though there was a question over what should happen should the Complainant’s condition improve.

Due to losing the current route contract, the Complainant was to be re-assigned to a new route in 2018. The Respondent’s depot manager, “GK”, gave evidence that he advised the Complainant that he was unable to assign him his previous start/finish time, but that he would endeavour to assign him similar hours on an ad hoc basis. This was understood to mean that the Complainant would start two hours earlier than his previous route. The Complainant disagreed with the account of this meeting and subsequently went on stress-related sick leave.

After nine months on sick leave, the Respondent’s doctor believed that the Complainant’s condition had improved and suggested he attempt to return to work. The Complainant did not return to work and ultimately, he was retired on the grounds of ill health in August 2020.

WRC Decision

The AO advised that GK faced problems in assuring that all staff were accommodated. Noting how the Complainant had been previously facilitated in relation to day shifts, the AO advised that this was done at the time as a “worst-case scenario” when he had first been diagnosed. However, it was understood that the Complainant’s sleep apnoea had since been under control for several years.

The AO took the view that it was not reasonable to assume that the employer was obliged to keep that reasonable accommodation in place forever. The AO held that employers “must be allowed (within reason) to adjust a reasonable accommodation in accordance with any changes in a physical or mental condition”, such as in this instance where the Complainant’s original diagnosis appeared to be less serious over time.

The AO held that at no stage did the Respondent ask the Complainant to work a shift which would not accommodate his sleep apnoea. The AO advised that “exploring the limits of what might be considered reasonable does not constitute discrimination”.

The Complainant’s claim for discrimination was therefore not upheld.

What does this mean for employers?

These determinations provide several key considerations for employers when reviewing current reasonable accommodations in place for an employee with a disability:

• Where medical evidence provides that there have been no changes in an employee’s disability, implementing changes to the current reasonable accommodation by an employer may be held to be discriminatory in certain circumstances;
• However, where there is medical evidence to suggest an employee’s disability has improved or is not as serious as was originally accommodated, making adjustments to a reasonable accommodation in line with such changes to their disability may not necessarily be deemed to be discriminatory. While it was held in the second determination that employers aren’t obliged to keep any such reasonable accommodations in place permanently, any such proposed changes must still be within reason and reflect the current status of an employee’s disability;
• Both determinations highlight the importance for employers in keeping records when implementing and maintaining any reasonable accommodations, and referring to them when seeking to make any proposed adjustments. On this basis, it is recommended that particular caution be afforded to instances where there has been a change of management. For example, in the first determination the employer’s superintendent was criticised for failing to engage with his predecessors when implementing changes to the employee’s reasonable accommodation; and
• Finally, employers should ensure to engage directly with employees when exploring any proposed changed to their reasonable accommodation. As evidenced, a failure to consult with an employee prior to implementing such changes may impact the WRC’s determination where there is a discrimination claim.

About the author

Conor Fynes is a solicitor in Eversheds Sutherland’s Dublin office specialising in employment law. Conor is also qualified to practice as a solicitor in England and Wales.
Conor completed his LL.M in King’s College London and specialised in intellectual property and information law. He completed his law degree at Trinity College Dublin.