Background Facts

The complainant was employed by the respondent from October 1986 until he was dismissed in August 2019 for incapability. The complainant had a history of stress related health issues. In January 2016, he went on sick leave and was advised to remove himself from work related stressors. In April 2016, the respondent arranged a medical assessment which stated that he was not fit to return to work but that he might be in a position to do so in three months, provided his treatments were successful. He continued to be unfit to return to work during 2016 and 2017. In May 2018, he was admitted to hospital for 10 weeks.
On 3 December 2018, he was declared fit to return to work, subject to him being facilitated with reduced travel requirements and being able to maintain proximity to his support network. The complainant’s role required extensive travel, both in Ireland and abroad, which he was unable to do after he returned from sick leave. It was agreed with the respondent that he should be eased back into work and this was facilitated by allowing him to make package deliveries locally in the run up to Christmas.
There were discussions regarding a role in a different team based in Dublin. However, he was later advised that it was not available as there were concerns regarding his senior grading level, when compared to other members of the team. He was put on paid leave and asked to remain at home. In February 2019 he was told that there was no suitable role for him in Ireland. The respondent proposed a lower-level role, which the complainant declined as his pension was based on final salary. At this time the complainant reluctantly raised the possibility of a severance package but he was advised that the company was not open to this.
In March 2019 the complainant attended another medical assessment that found he was not fit to return to his role but was fit for alternative roles which would minimise travel and responsibilities. In advance of a meeting with the respondent in May 2019, he was told that if a solution could not be found, the respondent might terminate his contract on the ground of capability. After this meeting, the company wrote to him advising him that he was being dismissed. He appealed the decision but his appeal was dismissed.
 

The Workplace Relations Commission’s decision

The complainant then brought two complaints to the Workplace Relations Commission. The WRC did not uphold the complaint of discriminatory dismissal but found that the respondent had breached the Employment Equality Acts 1998 to 2021 by failing to provide the complainant with reasonable accommodation due to his disability and awarded the complainant €20,100. The complainant appealed the decision to the Labour Court.
 

The Labour Court’s decision

The Labour Court found that there was no dispute about the complainant’s disability, which meant that he was unable to travel to the extent required in his job. He was assessed as medically fit to return, subject to him not being required to engage in travel and subject to adjustments in responsibilities. However, the Court found that he was not accommodated and, as a result of his inability to travel which was due to his disability, he was dismissed.
The Court first considered whether the respondent made the efforts required by section 16 of the Employment Equality Acts 1998-2021 to provide the complainant with reasonable accommodation to facilitate him in returning to work. The Court, referencing the Supreme Court’s landmark decision on reasonable accommodation in Nano Nagle v Marie Daly, stated that there is no requirement on the employer to find another distinct and separate job for an employee with a disability. However, the Court noted that “there is a requirement on employers to explore alternative modes of accommodation to establish if the position held by the employee with a disability is capable of adaptation so as to accommodate that employee”.
The Court found that the evidence was clear that the respondent had not undertaken an assessment to establish whether the complainant’s role could be done without the requirement for travel which would allow him to return to the role. There appeared to have been a simple assumption that it was not possible. The Court noted that the evidence before it was that there had been periods in the past during which travel was curtailed for budgetary reasons, and indeed during the pandemic, and that it had still been possible to do the job in those circumstances.
The Court further stated that if the respondent “was concerned about the long-term viability of attempting to have the job performed without this level of international travel, it was open to them to trial such an approach on a time limited basis. Had they done so, either it would have proved that such an approach was viable or, alternatively, it would have provided them with the basis to argue to the Court that it had proven not to be viable.” As a result of the respondent’s failure to consider whether reasonable accommodation could have been provided, as required by section 16 of the Acts, the Court found that the complainant’s rights were breached and he was discriminatorily dismissed.
In assessing compensation, the Court noted that while there was no obligation on the respondent to provide alternative employment, this had been explored. The Court stated that the complainant’s refusal to show flexibility and consider anything other than employment at his existing salary level hampered the respondent’s ability to find alternative employment for him. The Court set aside the decision of the WRC and awarded €75,000 in compensation for failure to provide reasonable accommodation and the complainant’s consequential discriminatory dismissal. The compensatory award amounted to approximately one year’s salary but the Court did not include “unguaranteed bonus payments”.
 

Reminder of the Supreme Court’s guidance in Nano Nagle

This cases is a timely reminder of the helpful guidance on reasonable accommodation laid down by the Supreme Court in Nano Nagle (our briefing on this decision is here), the key points of which are worth re-iterating here:

1. The Supreme Court broadened the scope of an employer’s reasonable accommodation obligation by stating that there is no reason why providing reasonable accommodation should not involve a redistribution of what might be termed core “duties” as well as non-core “tasks”. The Supreme Court has made it clear that an employer must consider potential actions concerning both duties and tasks in discharging its reasonable accommodation obligations.
2. An employer is under a mandatory duty to take all “appropriate measures” unless any measure would constitute a “disproportionate burden” for the employer. The employer must demonstrate that they have fully considered the reasonable accommodation question. The Supreme Court in particular noted that the test “is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee, as this would almost inevitably impose a disproportionate burden on an employer”.
3. The Supreme Court confirmed that an employer has no binding legal obligation to consult with an employee or to allow them to participate in the process of assessing what is or is not reasonable accommodation. Nonetheless, the Supreme Court commented that “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”, in particular in light of the importance of fair procedures under Irish employment law.
4. The Supreme Court confirmed that an employer is under a mandatory duty to explore the possibility of obtaining public funding or other assistance when considering all reasonable accommodation which might be put in place.
5. The Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his role, even on the provision of all reasonable accommodation, then there is no discrimination at issue.

Considering the above principles and the determination of the Court in this case, employers would be well advised to consider trialling revised work arrangements/reasonable accommodations before deciding they are or are not feasible.