of Alastair Purdy & Co Solicitors successfully represented a Complainant in the Labour Court recently resulting in an award of €75,000 for a discriminatory dismissal claim and failure to provide reasonable accommodation under the Employment Equality Acts 1998 (as amended) (“EEA
UPS v Kevin Roberts concerned an appeal to the Labour Court on behalf of Kevin Roberts of the Workplace Relations Commission’s previous ruling. The WRC previously held the complaint of discriminatory dismissal was unfounded and awarded the Complainant, Mr. Roberts, €20,100 for the Respondent’s failure to provide reasonable accommodation.
The Complainant was employed by the Respondent since 1986. From 2013, the Complainant began to suffer with his mental health. After attending a medical assessment arranged by the Respondent in January 2015 which identified he was suffering from a high number of stressors, the Complainant began an alternative role in Solutions management which involved extensive travel.
The Complainant’s wellbeing continued to worsen and in 2016 he went on sick leave and was advised to separate himself from all work-related stressors. The Complainant’s illness continued through to 2018 where he was admitted for hospital for 10 weeks. In December 2018, the Complainant was declared fit to return to work if his travel requirements were reduced and he could remain in close proximity to his support network. While being eased back into work, discussions began surrounding a role based in Dublin. Issues arose of whether the Complainant would be suitable for the role given he had a senior grading level. The Complainant was then ordered to stay at home but was paid during this period.
In February 2019, the Respondent stated there was no suitable role for the Complainant in Ireland. The Complainant declined a proposed lower-level role due to his concerns that his pension was based on his final salary.
In March 2019, the Complainant was deemed unfit to return to his previous role but was fit for alternative roles that would minimise travel and responsibilities. No solution was found by the Respondent and in May 2020 the Complainant was dismissed on grounds of incapacity. He duly appealed this decision, however, the Company upheld its decision to dismiss..
Alastair Purdy & Co Solicitors argued on behalf on the Complainant that the Respondent failed to provide reasonable accommodation as required for under Section 16 of the Act for the Complainant’s disability. It was accepted the Complainant had a disability as defined under Section 2 of the Act. Section 16(3) of the Act provides that an employer must provide ‘appropriate measures’ to allow a person with a disability access to employment, to participate in employment or to advance in employment except where this imposes a disproportionate burden.
The Complainant argued that the Respondent failed to meaningful consider or assess any other accommodation that could be introduced. Instead, the Complainant was dismissed solely due to his disability which the Respondent assumed could not be accommodated. This assumption was held despite the Respondent previously conducting roles with reduced travel due to budget reasons.
The Respondent argued that the Complainant’s dismissal was due to medical incapability. It further argued that attempts to reasonable accommodate the Complainant were made. The Respondent offered an alternative role which the Complainant was fit to do but refused due to financial reasons. The Respondent argued that travel was essential to the Complainant’s previous role and could not have been viable otherwise.
The Labour Court decided that the Complainant was discriminatorily dismissed and the Respondent failed to provide reasonable accommodation for the Complainant’s disability. It was not disputed that the Complainant suffered from a disability. As a result of his inability to travel which, in turn, was due to his disability, the Complainant was dismissed. This was primia facie evidence of discrimination thus the burden shifted to the employer in accordance with Section 85 of the Act which it failed to discharge.
In terms of the reasonable accommodation claim, the Court had to first determine whether the Respondent made the effort required in Section 16 to facilitate the Complainant in returning to work. The Labour Court relied upon the Supreme Court judgment in Nano Nagle v Marie Daly for guidance. The Court found that there is no requirement on the employer to find another distinct and separate job for an employee with a disability. However, there is another 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
There was no evidence that the Respondent attempted to evaluate whether the Complainant’s role was capable of being adapted and done without travel. Instead, the Respondent assumed that any adaption to remove the travel element was not feasible. Thus, the Respondent has admitted it has failed to do what was required under Section 16. Due to the lack of evidence, it was not possible for the court to determine if reasonable accommodation was provided, whether the Complainant would have been capable of performing the role. It was also unclear whether the job could have been done without travel because of the lack of assessment, but based on the fact travel was previously curtailed for budget reasons, it seems it would have been possible.
In determining the compensation to be awarded, the Court did acknowledge the Respondent explored the question of providing alternative employment although not effectively. It further noted the Complainant’s refusal to consider employment other than that at his existing salary which hampered the Respondent. Thus, for the failure to provide reasonable accommodation and the consequential discriminatory dismissal, the Court awarded the Complainant €75,000.
Key Takeaways for employers
This significant case reinforces the obligation on employers to demonstrate they have fully considered, assessed and potentially trialled what reasonable accommodation could be introduced where an employee is deemed unfit to work.
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