On the 11th June 2020, an employer was found to have discriminated against a former employee on the grounds of disability for failing to reasonably accommodate their request to work from home due to their ongoing anxiety. As a result, the employer was required to pay the employee €60,000 around 18 month’s salary for breaching the employees’ rights under Section 16 of the Employment Equality Acts 1998-2018.
The complainant was a former executive assistance and commenced employment with the respondent in 1998. Whilst suffering from Obsessive Compulsive Disorder, she contended that she suffered spells of anxiety when using the workplace toilets due to contamination fears.
As noted by the adjudicator, the complainant worked for the respondent for several years with the disability uninterrupted without requiring any accommodation. Her anxiety only developed following a period of long-term absence in 2018. The complainant at the time was advised by her doctor that she needed to use the bathroom every 3 hours following an incontinence diagnosis. As a result, the complainant informed her HR Partner of such and requested that she be reasonably accommodated.
Following this disclosure, the complainant was subjected to 6 months of continuous medical appointments from June 2018 and October 2018. During this time, the complainant met with a variety of medical assessors, her own psychiatrist and an independent psychiatrist. The complainant accepted, that during the first number of meetings, she was routinely informed that the possibility of working from home with the respondent was not possible.
Despite being deemed fit to work in July 2018 by her own psychiatrist, she was informed by the HR Partner at the end October 2018, that she may return work but only on a 4 hour a day schedule. The adjudicator drew specific focus to the psychiatrist’s recommendation to the medical assessor in October 2018, which provided the following:
“I would reiterate my support of a flexible approach. Obsessive-Compulsive Disorder is not associated with a loss of capacity or common sense and I expect that (name) will be able to adapt to a reasonable working environment with pragmatic planning.”
Despite such, the respondent rejected the complainants request to work a mixed schedule between the office and her home, claiming it was a student facing role, thus requiring her presence in the workplace. Upon her return to work in November 2018, the complainant was informed that she could take as many breaks as she needed.
On the 28th November 2018, having spoken with the complainants psychiatrist once more, the company doctor then wrote to the HR Partner supporting the complainants need to have two more additional toilet breaks in the afternoon or, alternatively, commencing working some of her time at home. However, this further request to work from home was again refused by the HR Partner, who on this occasion, referred to “data protection” concerns as the basis of the decision. When the complainant raised the issue of why another member of staff was being allowed to work from home, the HR Partner refused to discuss such due to confidentiality reasons. When the complainant tried to raise these matters with another HR person, this was refused.
Following her return to work, the complainant was struggling to adapt to the arrangements that had been put in place. As a result, she contacted her consultant psychiatrist to make another appointment. The next available date was the 9th January 2019. Due to this delay, she went to an occupational health assessor on the 14th December 2018, where she was medically certified on sick leave until after she saw her consultant on the 9th January 2019. The occupational health assessor wrote to the HR Partner on the 14th December 2018 confirming it would be in the complainant’s best medical interest to remain absent from work until the said assessment was carried out.
The letter once more cited the complainant’s request to work partly at home, stating the following:
“During the course of the assessment, (name) once again enquired about the possibility of working from home. I understand that due to data confidentiality concerns that this is not feasible. However, she has stated that there are others who are working from home and perhaps you might clarify this.”
The complainant met with her consultant psychiatrist on the 9th January 2020. However, upon speaking to her, the complainant felt she was unable to return to work on a full-time basis in the absence of the requested accommodation, and as a result, took the decision to retire on ill health grounds.
Notice of the employee’s request
It was the respondent’s contention that working from home was never suggested by any medical expert as an option to facilitate her at work. However, the adjudicator noted that a handwritten letter from the complainant’s consultant psychiatrist on the 28th November 2018, which clearly stated that he supported the view of the complainant requiring either two extra toilet breaks or an arrangement where she could work some of her time from home.
Together with the letter dated the 14th December 2018, the adjudicator felt that the issue of home working, was sufficiently raised on two occasions. Furthermore, the respondent was unable to provide any evidence that the option of home working was assessed to determine the practicality of same.
When assessing the extent of Section 16 of the Employment Equality Acts and an employer’s obligation to provide reasonable accommodation for a disabled employee, the adjudicator referred to the Supreme Court decision in Nano Nagle School v Daly  IESC 63. Here, the Court made it clear that the mandatory primary duty on the employer under Section 16(3)(b) is that he or she shall take appropriate measures to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden.
The adjudicator also referred to paragraph 84 of the decision which provided for the following:
“if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources.”
At the hearing the respondent confirmed that another member of staff was facilitated with working from home for a short period. There was no explanation why one member of staff was permitted to work from home, even for a short period, and the complainant was not.
On the basis of such, the adjudicator held that the respondent failed to consider what individual appropriate measures, including various working from home options that may have been available so as to enable the complainant to participate in her employment.
Whilst this decision was pre-COVID-19, it operates as a warning sign for employers to begin considering remote working conditions for employees with underlying health problems, even if such conditions may be contrary to the very nature of the role itself.
As such, employers will be required to adapt a prudent and robust procedure, deferring to medical opinion at all times under the backdrop of the employees’ contract of employment so as to minimize risk when dealing with such requests.