The extent of an employer’s common law and statutory duty to provide reasonable accommodation to disabled employees in the workplace has been the subject of much litigation.  More recently, a significant decision in the Supreme Court case of Nano Nagle v Daly IESC 63 clarified that a reasonable employer must demonstrate that all “appropriate measures” were taken to facilitate the disabled employee in question, with the duty of employers only limited to the extent such measures would constitute a “disproportionate burden” on the particular employer. 

So just how far do employers need to go to discharge this duty and be in a position to demonstrate that all “appropriate measures” were considered? Just how far is far enough? Are employers required to consider an employee’s request to work from home when assessing “appropriate measures“? This point was considered by the Workplace Relations Commission (WRC) in the recent case of Executive Assistant v University ADJ-0022851. 

What happened?

An executive assistant (the Complainant) suffering from obsessive compulsive disorder, advised her employer that she suffered significant anxiety about using the workplace toilets. The Complainant had been advised to use the bathroom every three hours by her doctor as a result of a lack of bladder control diagnosis. The Complainant approached the HR Partner regarding her disability in order to request reasonable accommodation at work.

The HR Partner advised that the Complainant meet with the University’s occupational health doctor. A series of meetings with the doctor followed, as well as consultations with the University’s consultant psychiatrist. However, a satisfactory solution was not identified. The Complainant’s suggestions of working from home or that the Complainant be provided with a personal toilet were not taken on board by the University.  When sought, no clarification was received by the Complainant as to why another member of staff was facilitated in working from home. The supports discussed included part-time work and retirement on ill-health grounds. The Complainant saw no option but to retire for the sake of their mental health. 

The Complainant brought a case of constructive dismissal and discrimination to the WRC, arguing that the University had failed, inter alia, to carry out a proper assessment of reasonable accommodation.

What did the WRC decide?

The WRC considered whether the University took ‘appropriate measures’ in accordance with section 16(4) of the Employment Equality Acts. The WRC held that the duty to assess various working arrangements that would enable the Complainant to continue to participate in employment was not satisfied. In addition, the Complainant was treated differently to the other member of staff who was facilitated in working from home, with no explanation provided as to why this was the case. 

The WRC held that the University failed to make reasonable accommodation for the Complainant’s disability and, as a result, the Complainant was discriminated against on this ground. A substantial award of €60,000 was granted by way of redress. 

Key takeaways for employers

The extent of an employer’s duty to reasonably accommodate disabled staff is case specific.  Accordingly, the assessment of whether appropriate measures have been sufficiently and proportionately considered when balanced with the accompanying burden is not clear cut. In light of the ongoing COVID-19 pandemic and the current re-opening of Ireland against the Return to Work Protocol, questions of reasonable accommodation, which may include working from home, are likely to land on employers’ desks.  To minimise exposure to claims of discrimination, employers should adopt a prudent approach of engaging and consulting with the employee in question whilst having appropriate regard to relevant medical advice.

If you would like any advice on any of these issues, please contact Ailbhe Dennehy, Catherine O’Flynn or your usual William Fry contact.

Contributed by Robert Glascott