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Substantial award made to employee for failure to provide reasonable accommodation

16 July 2020
 In the recent WRC case of Executive Assistant v University ADJ-00022851, the Adjudication Officer ("AO") was required to decide whether the Respondent had failed to reasonably accommodate the Complainant as a result of her disability and also whether the Complainant had been constructively dismissed, where she claimed she had been forced to retire on ill health grounds.  

Summary of the Complainant's case

The Complainant was an executive assistant and she commenced employment with the Respondent in November 1998. The Complainant suffered from obsessive compulsive disorder ("OCD").  
The Complainant had been out on maternity leave, followed by annual leave and was due to return to work in July 2018. The Complainant's condition caused her to suffer severe anxiety about contamination when using the toilets in work. She received medical advice that she should use the toilet at least three times a day, following a diagnosis of incontinence, which her doctor advised was caused by not using the toilet frequently enough. Knowing this would be problematic for her upon her return to work, she contacted the HR manager to inform them of her disability and request that they accommodate her.  

The HR manager arranged for the Complainant to see the Respondent's doctor on the 7th June 2018. The use of her own toilet was discussed and the possibility of working from home. The doctor sought to speak with the Complainant's consultant psychiatrist, which the Complainant agreed to. The Complainant met with the occupational health doctor again on the 21 June 2018, who reported that her consultant was not in favour of her having her own personal toilet. The doctor also reported that the Respondent wouldn't permit the Complainant to work from home.

The Complainant was subsequently referred to another occupational health doctor and she attended with this doctor in July, August and October 2018. She repeated her request to work from home. This doctor made it clear that the Respondent was not agreeable to her working from home. 
The Complainant met with her consultant psychiatrist in October 2018, who told the Complainant that all along he had informed the Respondent's occupational health services that if the Complainant was fit to return to work, that reasonable supports would be helpful. 

In October 2018 (some four months after the Complainant was originally due to return to work) the Respondent's occupational health doctor told the Complainant that she could return to work on phased basis – working four hours a day from November.  

In her discussions with HR, the Complainant suggested a number of possible accommodations, such as working part time at home and part time in the office; extra toilet breaks and time to return home to use her own toilet. All of these suggestions were rejected by the HR manager. Further discussions took place but the possibility of working from home was ruled out. Initially this was ruled out as an option due to data protection reasons. When the Complainant asked why another member of staff was permitted to work from home, the HR manager refused to discuss this, citing confidentiality. The Complainant sought to escalate this to a more senior HR person, however, her request was refused. 

The Complainant went out on sick leave in January 2019 and attended with her consultant psychiatrist. She explained that working full time was too stressful because of the toilet issues. She said she saw no option but to retire for the sake of her mental health. The consultant psychiatrist was supportive of the Complainant's decision, as was her GP, and the occupational health doctors. The Complainant retired on the 25th January 2019. 

Summary of Respondent's case

The Respondent objected to the Complainant bringing a complaint under both the Employment Equality Acts and the Unfair Dismissals Acts and argued that they were in effect the same complaint. 

The Respondent rejected both claims and argued that the Complainant had left her role voluntarily and that her decision to do so was validated by her psychiatrist and doctor. The Complainant's psychiatrist wrote to the Respondent on 10 January 2019 to support her decision. The Respondent further submitted that the decision made by the Complainant was never suggested or encouraged by the Respondent. The Respondent stated that the Complainant failed to use the standard grievance procedure and that there was an obligation on the employee to use the procedure before deciding that they had no choice but to resign.

The Respondent also claimed that working from home was never suggested by any medical expert. 

Discrimination Claim – Outcome 

As a preliminary issue, the AO held that the Complainant had not brought two identical claims under different legislation, noting that she had not claimed she was discriminatorily dismissed, and held that she was entitled to proceed with both claims. 

The AO was satisfied that the Complainant's condition satisfied the definition of a disability as set out in the Employment Equality Acts. The Respondent also accepted that the Complainant had a disability.  

The AO referred to the Respondent's assertion that working from home was never recommended by any medical practitioner. She noted that the issue of working from home was raised in a letter from the Complainant's consultant psychiatrist in November 2018. It was also referenced in correspondence from occupational health to HR in December 2018. It was noted that the Complainant herself raised this as an option several times with HR. The AO noted that the Respondent did not provide evidence that it conducted any sort of assessment into the possibility of the complainant working from home and she noted that another member of staff had been permitted to work from home.

The AO referred to the Supreme Court's decision in Nano Nagle School v Daly [2019] IESC 63, noting that the Court in that case made it clear that the mandatory primary duty of an employer under section 16(3)(b) of the Employment Equality Acts was to "take appropriate measures to enable a disabled person have access to employment unless these measures would impose a disproportionate burden". 

At the hearing the Respondent confirmed that another employee had been permitted to work from home. The Respondent failed to explain why this option was feasible for another member of staff but not for the Complainant. 

The AO concluded that in not carrying out an assessment of the possibility of the Complainant working from home, the Respondent failed to provide the Complainant with reasonable accommodation and that she was discriminated against on the grounds of her disability. The Complainant was awarded compensation in the amount of €60,000, which equated to over one and a half year's pay. 

Claim for Constructive Dismissal – Outcome 

The AO acknowledged that the Complainant found it very difficult to manager her OCD and continue to work. Following an appointment with her consultant psychiatrist in January 2019, the consultant wrote to HR in support of the Complainant's decision to seek retirement on grounds of ill health. In his letter, the consultant noted that the Complainant was "aware of the pros and cons of this decision and has considered this step carefully in collaboration with professionals, friends and family, including her union and a HR expert". The Complainant signed a retirement decision form on the 19th February 2019. 

The AO noted that when an employee resigns and brings a claim of constructive dismissal the burden of proof rests with the employee. The employee must prove that the conduct of the employer was such that it breached a term that goes to the root of the contract or that the conduct was in contravention of the essential terms of the contract.  

The AO concluded that the Complainant did not use the internal grievance procedure and that the Complainant had made her own decision to resign. The Complainant had not signalled any intention to resign before January 2019 and ultimately decided that the burden of proof for constructive dismissal in this case had not been met. 

What this means for employers?

The level of compensation awarded for the failure to provide reasonable accommodation in this case is significant – over one and half year's pay, where the maximum that could be awarded is 2 years pay.  

Employers must be aware that they have a statutory duty to take appropriate measures to enable disabled employees to continue working, provided this does not present a disproportionate burden for the employer. 

Employers should engage meaningfully with disabled employees and properly consider any suggestions put forward by the employee or their medical advisor. The employer should record any options that are considered and the decision making process around them. This may involve the employer considering unprecedented measures and analysing how such measures could be implemented taking into account the nature of the disabled employee's role. 

As a result of Covid 19, it is likely that an increased number of employees will disclose a disability to their employer and request reasonable accommodation, such as working from home. Such requests should be meaningfully considered, having regard to the employee's role. 

Authors: Alison Martin and Thomas Bulfin 

Further Reading