Facts: The Complainant’s employment transferred to the Respondent by way of a transfer of undertaking in August 2018. Her previous employer had made reasonable accommodations for her due to her Achilles Tendonitis and based on the advice from Occupational Health. The Respondent would not apply the agreement made between the Complainant and her previous employer.

The Complainant brought a claim to the WRC in December 2018 under the Employment Equality Acts (the “Acts”) for failure to provide reasonable accommodations.  The WRC awarded her €850.  Both parties appealed the WRC decision, the Complainant appealed the amount of compensation, and the Respondent appealed the decision itself.  The appeal was heard by the Labour Court on 27th July 2021.  It was accepted by both Parties at the outset of the appeal that the Complainant had a disability within the meaning of the Act.

Prior to the transfer of employment, the Complainant had attended Occupational Health after a period of absence from work.  Occupational Health recommended that she should be placed on restricted duties, not carry anything over 5kg, not be on her feet for more than 3 or 4 hours a day and her day should be a mixture of sitting and standing duties.   Her previous employer implemented these recommendations and agreed, as a temporary measure, that she should work a three-day week or 20 hours.   While on till duties, the Complainant was permitted to sit on a stool.

The Complainant submitted to the Labour Court that the Respondent did not continue to allow these reasonable accommodations when she transferred to them under Transfer of Undertakings Regulations.   It was submitted that she was put on wash duties requiring her to carry heavy pots and trays and the seating at the till was removed.

The Complainant argued that she raised these issues with the Respondent on a number of occasions and in November 2018 her GP provided evidence that her condition was worsening. She states that she received no response from the Respondent.

As the Complainant lodged her claim with the WRC on 18th December 2018, the reference period for her claim was limited to the period from 18th June 2018 to 17th December 2018.

The Complainant was seeking to restore the reasonable accommodation arrangements that she had with her previous employer and despite the Union raising grievances on her behalf and some engagement with the Respondent, they refused to provide these reasonable accommodations.   The Complainant was certified unfit to work from January 2019 until April 2021 when she resigned.

The Respondent claims that they were not informed of the arrangement made with the previous employer when the transfer occurred in August 2018, despite having received some paperwork relating to the Complainant.  They argued that they were unaware of the accommodations provided before the transfer until October 2018 when the Complainant raised it with them.   The Respondent submitted that the job required the Complainant to be on her feet a lot and that there wasn’t much scope to provide alternative duties.

The Respondent argued that the Complainant could rest during her breaks and that the pots and pans were light with the heaviest being 4kg.  They submitted that the stool at the till was a hazard which had caused an accident in the past.

The Respondent admitted to the Labour Court that it had not carried out any assessment of the Complainant’s needs in order to establish what was required and what was possible and not possible for it to provide.

Decision:  The Labour Court determined that the reasonable accommodations required by the Complainant were minimal.  It held that such accommodations would not be unreasonably burdensome to the Respondent and the Respondent had not even carried out an assessment to determine otherwise. Therefore, the Respondent’s appeal failed.  The Labour Court upheld the Complainant’s appeal and increased the award to €5,000 in compensation.

Takeaway for the Employers: Employers should be aware of what is required by employees who suffer from a disability.   An occupational health assessment should be carried out and serious consideration given to its recommendations at the very minimum before any decision can be made as to whether or not the accommodations are disproportionate or not.  An Employer must be able to show that it reviewed all possibilities to accommodation the disabled employee.

Link  – https://www.workplacerelations.ie/en/cases/2021/september/eda2129.html

Authors – Nicola MacCarthy, Anne O’Connell

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