Reasonable Accommodation*

By December 31, 2021Employment Law

Reasonable Accommodation*

This issue arose in the case of MultiRoofing Systems Limited and Boguslaw Magajczyk EDA2140.

This was an appeal from a Decision of the Adjudication Officer.

The complainant was employed. In 2010 he went on sick leave due to pains in his arms neck and back. He was diagnosed as having a spinal cord injury. The issue then related to whether reasonable accommodation had been afforded to him.

The Supreme Court quoted the case of Nano Nagle –v- Marie Daly 2019 ELR221 where Mr. Justice McMenamin noted;

Once consultation, or necessary steps to compliance, had been taken, an employee entity may have to ask itself the ultimate question whether having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as applied in Section 16 (1) is, in fact capable of adaptation so as to accommodate the claim, and whether the claimant would be capable of performing that function thus adapted. But is that “position” or job not another one”.

The Court pointed out that the Judgement sets out clearly that the requirement on an employer when dealing with a situation where an employee has a disability it is to examine if that employees job is capable of an adaptation so that by taking appropriate measures in accordance with the Act the employee can carry out the full function or role.

The Court pointed out that this clearly requires that an employer should examine the job thoroughly and ascertain what accommodation might be capable of being made that do not generate a disproportionate burden or cost. The Court pointed out that the case is on whether the Court was satisfied that this deliberate exercise was carried out at the level required.

The Court pointed out that they had no reason to doubt the competence of qualification of Ms. Farrell or to doubt the sincerity of the conviction that the complainant could not be accommodated by appropriate measures given the nature of the work involved and the nature of the disability. Nor could the Court question her knowledge of the respondents business and the physical demands on its employees so that even to an outsider it might appear to be self-evident to use these skills and insight appropriately when determining if the complainant could ever be facilitated to return to work.

The Court pointed out;

However, the extract from the Supreme Court Judgement in Nano Nagle quoted above makes clear that something more is required of an employer than simply instinctive judgement. What is required is a transparent, deliberative process”.

The Court was concerned that there were no records of any deliberations. The Court stated;

While the lack of such possible consultation does not, itself, fatal to the respondent’s case, the absence of hard concrete evidence in such deliberation is of concern to the Court”.

The Court pointed out that in Humphreys –v- Westwood Fitness Club 2004 ELR296 there is a requirement on an employer to be in possession of all relevant facts when making such assessments.

The Court quoted the case of A Health and Fitness Club –v- A Worker EED037 where it is noted that a Bona Fide belief that a workers is not capable of undertaking a job is a defence against the claim of discrimination on the grounds of disability. However, the findings in that case went on to note that, before forming this belief, an employer is “normally required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.

The Court quoted the case of A Worker –v- An Employer 2005 ELR159 where it was stated;

The duty placed on an employer by Section 16 (3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the detriment of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospital NHS Trust –v- Cambridge 2003 IRLR566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonably, possible or effective”.

In this case the Court held in favour of the employee and compensation of €10,000 was awarded.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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