Providing 'Reasonable Accommodation' To Employees With A Disability

A recent decision of a WRC Adjudication Officer found an employer had failed in its obligation to provide reasonable accommodation to an employee with a disability. We examine the facts of the case and the likely implications for employers.

In this case, ADJ-00001672, AO: Ray Flaherty, the employer was ordered to return the employee to their payroll for six months and to pay the employee €15,000 in compensation for the “effects of the act of discrimination”. During this six month period, the parties were directed to “engage in direct and meaningful discussion” to find a reasonable and definitive resolution of the matter.

Background

The employee was diagnosed with epilepsy in 1997. However, he had not suffered an epileptic episode since 2001.The employee started working for the employer in 2004, in a “safety critical role”. He did not disclose his pre-existing epilepsy condition prior to the commencement of his employment. He continued in this role until January 2015, when he was certified as unfit for duty in respect of a health matter unrelated to his epilepsy. While engaging with the employer's medical advisors about his January 2015 illness, the employee advised the employer's medical officer for the first time of his pre-existing epilepsy condition. The employer refused to allow the employee to return to work due to his “ongoing medical condition”.

In December 2015, the employer's Chief Medical Officer declared the employee fit to resume restricted duties and recommended alternative, non-safety critical work be made available. The employer contended that they began a trawl through alternative positions for the employee, all of which were deemed not to be feasible. The employer submitted that they explored whether the employee could operate in a lone role using a Lone Person Working Device, but the medical restrictions of his condition meant this was not possible.

Employment Equality Acts

Section 16 of the Employment Equality Acts 1998 - 2015 requires an employer todo what is reasonable to accommodate the needs of a person who had a disability by providing special treatment or facilities. However, an employer is not required to retain an individual in a position that the individual is notfully competent and available to undertake the duties attached to that position. The question that provokes apprehension for employers is what lengths they must...

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