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In the recent case of Mary Tracy v. Smurfit Kappa Ireland Limited t/a the Educational Company of Ireland (decisions linked here and here), the Workplace Relations Commission (the WRC) ordered an employer to pay a total of €64,000 for: (i) the failure to consider or explore any reasonable accommodations for an employee with a disability; and (ii) the discriminatory dismissal of that employee.
This case serves as a reminder to employers of their obligations under the Employment Equality Acts 1998 – 2015 (the EEA), particularly the duty to make reasonable accommodations for employees with disabilities. In our briefing, we review the law on an employer’s duty to provide reasonable accommodations in light of this decision, and the steps employers should take when on notice of an employee and/or job applicant’s disability.
What happened in the recent Tracy case?
The Complainant was employed as an educational sales representative, a role which involved carrying a heavy load of schoolbooks on a day-to-day basis. The Complainant was diagnosed with Systemic Lupus Erythematosus (SLE), a rheumatological condition and an autoimmune disease, and was experiencing ongoing joint pain.
The Complainant had been assessed by Occupational Health and was deemed fit to work with a manual handling restriction of 3kg for a number of months. The Respondent offered the Complainant an alternative role, which the Complainant viewed as unsuitable for reasons including the scope of the role, the fact it was target driven, she did not feel qualified for certain parts of the role, and she felt she would be at-risk of burn-out. The Respondent then terminated the Complainant’s employment on grounds that she was not capable of fulfilling the essential duties of her role as a sales representative.
Reasonable accommodation explained
The EEA obliges employers do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities. Pursuant to the EEA, a reasonable employer is required to demonstrate that all “appropriate measures” to facilitate an employee with a disability were taken. This duty is limited by the extent to which such a measure would constitute a “disproportionate burden”. Case law has helped to clarify the extent of this duty, in particular the landmark Supreme Court decision of Daly v Nano Nagle School (Nano Nagle).
Appropriate measures
Employers must take “appropriate measures” to enable a person who has a disability to:
As a consequence, employers cannot decide that a person with a disability is incapable of doing a particular job without considering whether there are appropriate measures which they could take to support the person to carry out their role.
The EEA provides that appropriate measures are effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned. Appropriate measures include, for example, the adaptation of equipment, patterns of working time and the provision of training or integration resources.
Proactive duty
The Supreme Court in Nano Nagle describe the duty to take appropriate measures as the “mandatory primary duty of an employer”. Employers should be proactive in considering such measures, rather than the onus being on the employee, to provide details or advice on suitable measures or forms of reasonable accommodation.
Assessment
The obligation to provide reasonable accommodation can only be properly satisfied where an employer has carried out an assessment, whether that is medical, ergonomic or occupational, in order to see what appropriate measures can be put in place.
Employers should refer employees to an occupational health specialist and consider any medical advice on the suitable forms of reasonable accommodation carefully. The Adjudication Officer in the Tracy case called the Respondent’s failure to undertake a work site assessment, despite it being offered by the occupational therapist, “a missed opportunity” and viewed this failing as “questionable” in circumstances where the Respondent maintained its focus was on health and safety issues.
Employee engagement
While Irish law does not go so far as to say consultation with employees is a mandatory obligation in each and every case, the Nano Nagle decision makes clear that employers would be wise to do so. In the recent Tracy case, the Adjudication Officer viewed the proceedings as “a regrettable consequence of a lack of consultation with the Complainant in relation to appropriate measures”. Reasonable employers should engage in meaningful consultation with an employee on what appropriate measures can be explored to permit the employee to carry out their role.
Case by case examination
There are various measures that employers can put in place depending on the circumstances and should be examined on a case-by-case basis. Some common examples include a phased return to work where an employee has been absent due to a long-term illness, adjusting working hours and adapting work equipment as necessary.
In the recent Tracy case, the Adjudication Officer noted that an offer of an alternative role may well constitute an appropriate measure, however, in this case the offer was made as a solution to the Respondent’s decision that the Complainant could not undertake the duties of her role as a sales representative.
Reasonable accommodation should be responsive to individual needs. Different individuals with the same disability may require different accommodations depending on the circumstances and therefore should be examined on a case-by-case basis.
Disproportionate burden
As noted above, the duty of providing reasonable accommodation is limited to the extent to which the financial and other costs of such accommodation constitutes a “disproportionate burden”. It is imperative that employers explore and consider appropriate measures in the first place. In the Tracy case, the key issue was that the Respondent did not explore appropriate measures for her needs. The Adjudication Officer noted that had appropriate measures been properly identified and evaluated or tested, the Respondent may well have established them to constitute a disproportionate burden.
Before concluding that reasonable accommodation measures or facilities would place the employer under a ‘disproportionate burden’, the possibility of obtaining public funding, grants and so on must be considered. When considering whether a reasonable accommodation constitutes a disproportionate burden, the EEA makes clear that the employer company’s scale should be kept in mind. Accordingly, a higher expectation is placed on large multinational companies as compared to a small business. In addition, many reasonable accommodation measures would not necessarily have a cost implication – such as flexible work arrangements or hybrid / remote working.
The Nano Nagle decision makes clear that the duty to provide reasonable accommodation is not “infinite or at large”, however, employers should be mindful that the defence of ‘disproportionate burden’ is generally construed narrowly by the Irish courts.
Key takeaways for employers:
In summary, employers should:
For further information in relation to this topic, please contact Aoife Clarke, Senior Associate, Sarah Linehan, Solicitor or any member of ALG's Employment Law team.
Date published: 11 February 2025
