1. Introduction
The case of Sarah Treacy v Centz Retail Holdings Ltd. (ADJ-00037025) examines the circumstances under which an employer will be required to consider remote working, as a form of reasonable accommodation, in respect of an employee who may be suffering a disability.
Sarah Treacy (the Complainant) brought a complaint under section 77 of the Employment Equality Act 1998 against Centz Retail Holdings Ltd. (the Respondent) to the Workplace Relations Commission (WRC), alleging that the failure of the Respondent to allow her to work from home constituted a failure on their part to provide her with a reasonable accommodation.
According to the Complainant, she was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), sought to work from home for a portion of her working week to allow her downtime. She found office work distracting and sought accommodation for occasional work from home. The Respondent refused to provide the requested accommodation and accused her of using her disability for pay increase. The Complainant’s consulting psychologist recommended a private office space, but the Respondent refused, citing unsuitability and regular use. The Respondent also allowed another employee to work from home in other circumstances without a disability and during her pregnancy due to Covid concerns. The Complainant’s grievance complaint was dismissed, stating that the Respondent had a policy against working from home. The Complainant argued that this policy missed the purpose of reasonable accommodation and that the Respondent would not provide the accommodation without consulting a medical practitioner or follow-up queries.
According to the Respondent, they recognised that the Complainant had ADHD, and agreed that this should be considered a disability for the purposes of the Employment Equality Act.
The Respondent also accepted that the Complainant provided them with the report her Clinical Psychologist in June 2021. They highlighted that the report from her Clinical Psychologist stated; “Given Sarah’s diagnosis, it is expected that she will find working in an open plan office very distracting and as such it is recommended that she be provided with somewhere silent where she can focus on work and also be able to take movement breaks when required without disturbing her colleagues.” On foot of the said report, and in accordance with its recommendations, the Respondent made arrangements to provide the Complainant with a separate office within which she could carry out her work free from distraction and would be free to move about as required.
2. Legislation and Case Law
Disability is defined in section 2 of the Act as:
“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour…
Section 16(3)(b) of the Act provides that: “the employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability – (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless such measures would impose a disproportionate burden on the employer”.
The Supreme Court in Nano Nagle School v Daly [2019] IESC 63 decided the following concerning the interpretation of Section 16 of the Act, at paragraph 84:
“Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, 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, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”
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 where needed in a particular case to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden.
Section 16(4) defines appropriate measures. Appropriate measures are not just physical changes but may include changes in work practices. Each individual case must be assessed by the employer to establish what appropriate measures are required. An employer’s response to assessing what appropriate measures are required is described in Employment Law (Regan 2017) at paragraph 17.277 as follows: “It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary or required. It involves the employee entering into an interactive dialogue with the employer, to search for the right kind of accommodation needed in the overall circumstances of the case. It is a proactive obligation placed on employers.”
3. Decision
Ultimately, the Adjudication Officer decided that, while the provision by the Respondent of an office to the Complainant, in part addressed the needs of the Complainant, the failure of the Respondent to carry out a proper assessment of those needs and make an informed determination as to a modification of her working terms, conditions, and routines, constituted a failure on their part.
The Adjudication Officer determined that:
“Notwithstanding the above, the Respondent did not present evidence of any assessment made by them in terms of the Complainant’s working from home request. In circumstances where it was recommended by her psychologist that the Complainant be allowed to work from home on occasion, that the Respondent had allowed her to work from home in the past and had allowed another employee to do so and failed to make an assessment of the Complainant’s needs themselves, I find that the Respondent failed to make the Complainant reasonable accommodation for her disability and that she was therefore discriminated against.”
Considering all of the factors, the Adjudication Officer made an award of €5000 in respect of the discriminatory treatment.
4. Takeaway
The takeaway for employees considering bringing a complaint under the Employment Equality Act, 1998, alleging that their employer failed to provide them with a reasonable accommodation is to determine whether they put their employer on notice of their disability, and afforded their employer an opportunity to explore all of the viable options, before making a determination, as to whether the proposals, if any, were suitable.
For employers, it will be necessary to demonstrate, that when an employee presents with a disability, that a proper consultation, with the employee is undertaken, taking into account the medical evidence presented, as well as the feedback of the employee concerned, in determining whether any proposal is suitable, and fulfilling their obligations as an employer to provide a reasonable accommodation to the employee concerned.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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