Key Learnings
This Case highlights the importance of proactively dealing with concerns from Employees in particular where health or other concerns arise that could warrant reasonable accommodations. This case emphasises that where a disability is known this is sufficient to raise an inference of discrimination and thereafter an Employer’s obligations are to examine the requirement of reasonable accommodations. Employers must provide reasonable accommodations to enable Employees with disabilities to participate fully in the workplace insofar as the accommodations do not place a disproportionate burden on the Employer. Accommodations should be effective, practical, and adapt to the specific disability. Employers should promptly implement recommendations from medical experts, including their own advisers. Failure to do so can lead to substantial consequences. Timely action and adherence to accommodation recommendations are vital to preventing issues and ensuring fair treatment in the workplace.
Background
The Complainant worked as a Higher Executive Officer with the Respondent in Cork Prison but had been out on sick leave since February 2020. She complained that the Respondent had discriminated against her by failing to provide reasonable accommodation by permitting her to work from home.
Summary of Complainant’s Case
In 2019, the Complainant was diagnosed with a heart condition, and, in February 2020, she suffered an acute cardiac event at work. She subsequently commenced paid sick leave. Her surgery, scheduled for March 2020, was postponed due to the Covid-19 pandemic. The Complainant made several requests to work from home, but these were refused on the basis that prison-based staff could not work from home. The Complainant submitted a list of tasks and duties to support her application to work from home, but these were deemed unworkable by the Respondent. The Complainant submitted that she had been discriminated against as the Respondent had failed to properly engage with her or to properly investigate what reasonable accommodation could be provided.
Summary of Respondent’s Case
The Respondent accepted that the Complainant had a disability but submitted that due to the nature of the Complainant’s duties, including processing and dealing with sensitive files relating to prisoner issues, presence on site at Cork Prison was mandatory. The national prison service met in March 2020 to deal with the challenges presented by Covid-19 and determined that all on-site staff would be deemed essential workers and be required to attend on site. The Respondent confirmed that it had not assessed the Complainant’s role in terms of the reasonable accommodation policy and had not considered the costs of allowing her to work from home.
Findings
The Adjudicator noted that the Complainant’s condition amounted to a disability within the meaning of s.2 Employment Equality Acts 1998 to 2021 (“EEA”). Sections 6 and 8 provide that a person cannot be treated less favourably on grounds of disability in relation to the conditions of employment. On a claim of discrimination, it is for the Complainant to prove primary facts in order to raise a presumption of discrimination. If the facts proven are of sufficient significance to raise such a presumption, the burden of proving that the treatment was not discriminatory shifts to the Respondent.
The Adjudicator held that the refusal of the Complainant’s request to work from home was made in full knowledge of her disability. This was sufficient to raise an inference of discrimination. The key issue in this case was whether the Respondent had complied with their obligations to provide reasonable accommodation pursuant to s.16 EEA. An Employer does not have to retain an Employee who is not fully competent and capable of undertaking their duties. However, s.16(3)(a) obliges an Employer to provide reasonable accommodation to a person with a disability so long as any measures do not impose a disproportionate burden on the Employer.
The Adjudicator referred the Supreme Court case of Nano Nagle School v. Marie Daly [2019] IESC 63, [2019] 3 IR 369, which held that the requirement to reasonably accommodate an Employee with a disability is a mandatory primary duty. An Employer should engage and consult with the Employee in relation to reasonable accommodation.
The Adjudicator noted that the case arose with the onset of the pandemic and accepted that this placed the Respondent on high alert and on emergency mode from March to 15 June 2020, when the complaints were lodged. She noted that the claim for reasonable accommodation may have had an earlier resolution had it been channelled through the Respondent’s grievance procedure.
Notwithstanding, the Adjudicator held that by placing a ‘blanket ban’ on working from home, the Respondent failed to attempt to reasonably accommodate the Complainant. No risk assessment or evaluation of the Complainant’s duties/tasks was undertaken. Suggested changes to the Complainant’s role were not objectively measured, discussed, consulted on or evaluated either by trial or pilot. Whether the Respondent would ultimately have been justified in refusing the Complainant’s request to work from home was not relevant; the case law emphasised that an Employer is obliged to consider the request for reasonable accommodation.
Decision
The Adjudicator found that there was very little corporate knowledge of reasonable accommodation in the Respondent. Furthermore, the Respondent could not rely on the defence of disproportionate burden since they did not cost the proposed changes. Accordingly, the Complainant had been discriminated against by reason of the failure to consider reasonable accommodation and the Adjudicator awarded €55,000 in compensation. Additionally, the Adjudicator required the Respondent to immediately engage a strategic working party to engage in a social dialogue on reasonable accommodation and to formulate an operational policy. The Adjudicator also directed that a comprehensive report on this be furnished to the head of the Prison Service no later than 31 December 2022.