Reasonable Accommodation and Long Covid

Background

The case of Oisín Gourley v Mason Hayes & Curran LLP ADJ-00049048 examines the circumstances under which an employer will be compelled to consider what reasonable accommodations can be provided to an employee who is suffering from long covid.

Mr. Gourley (the Complainant) brought a complaint under section 77 of the Employment Equality Act, 1998 against Mason Hayes & Curran LLP (the Respondent) to the Workplace Relations Commission (WRC), alleging that his dismissal at the end of his probationary period, was unjust, as he had been suffering from long covid during his probationary period, which negatively impacted his ability to perform his tasks. The Complainant asserted that the Respondent made no attempts to provide him with a reasonable accommodation, or to assess his capacity, whatsoever.

Legislation and Case Law

The complaint was primarily grounded the Employment Equality Act, 1998.

A number of cases were cited by both parties.

In Burke v Turning Point Scotland, the Employment Tribunal determined that an employee could bring a claim for disability discrimination against his employer. The Tribunal held that Mr Burke’s long COVID, which included symptoms such as fatigue, headaches, an inability to concentrate and difficulty sleeping, qualified as a disability. This was despite a lack of medical evidence and that his condition had not yet lasted for 12 months or longer, as the Tribunal found that it was likely to last for 12 months.

Nano Nagle School v Daly [2019] IESC 63 is authority for the proposition that “reasonable accommodation” should be broadly defined: as per McMenamin J, at para 29:

Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be “physical, organisational and/or educational.” It concluded that, in accordance with the second paragraph of Article 2 Convention on the Rights of Persons with Disabilities (CRPD), reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held: “It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’“.

The Labour Court determination in Humphreys v Westwood Fitness Club (LRC EED037) sets out the test for the minimum requirements when an employer is asked for reasonable accommodation:

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Nano Nagle School v Daly [2019] IESC 63 is authority for the proposition that the Respondent should have sought to engage with the Complainant at various points in his employment when he put the Respondent on knowledge of his disabilities.

“I respectfully disagree with the Court of Appeal’s conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act.”

Considering the equivalent provisions under the English equality legislation and its requirement for “reasonable adjustments”, the EAT held in Noor v Foreign & Commonwealth Office [2011] UKEAT 0470_10_1402 At para 33: 

 "Firstly, [the employment judge whose decision was appealed] said that in order for an adjustment to be reasonable, section 18B(1)(a) says that it must show that taking that step would prevent the disadvantage. Section 18B(1)(a) does not say this. It is a statutory direction to take into account the extent to which the step under consideration would prevent the effect in relation to which the duty is imposed. Although the purpose of a reasonable adjustment is to prevent a disabled person from being at a substantial disadvantage, it is certainly not the law that an adjustment will only be reasonable if it is completely effective. See, for example, HM Prison Services v Beart [2002] EAT/650/01 at para 29."

In the case of Dominique v Toll Global Forwarding Ltd UKEAT/0308/13/LA) the EAT held that an employer failed in its duty to make reasonable adjustments when it did not adjust certain redundancy criteria that placed a disabled employee at a substantial disadvantage. This was despite the fact that making adjustments would have made no difference to the eventual decision to dismiss the employee at para 55:

"The originating application in this case complained of detriment or disadvantage more generally and of hurt feelings as a result of disadvantageous or detrimental treatment in addition to questions of dismissal. The duty to make reasonable adjustments therefore extended to avoiding unlawful discrimination by subjecting the Claimant to a non-adjusted criterion that placed him at a substantial disadvantage because of his disability and was therefore detrimental in addition to a duty to avoid dismissal. Had the Employment Tribunal recognised this, its findings indicate that it would have found a failure to comply with the reasonable adjustments duty on this basis. When it came to consider questions of justification of discriminatory treatment falling short of dismissal, that failure to comply with the reasonable adjustments duty ought to have been factored into the justification question but was not. In this limited respect, we accept that this Tribunal erred in law."

And in the case of Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10, where the EAT stated that there need not be a "good or real prospect" of a proposed adjustment removing a disabled employee's disadvantage for that adjustment to be reasonable. An adjustment might be reasonable, and therefore required, where there is "a prospect" that it will succeed at para 17:

“17. In fact, there was no need for the Tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008. It would have been sufficient for the Tribunal to find that there would have been just a prospect of that. That is the effect of what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) at [50]. That is not inconsistent with what the Employment Appeal Tribunal (Judge Peter Clark presiding) had previously said in Romec Ltd v Rudham (UKEAT/0069/07/DA) at [39]. The Employment Appeal Tribunal was saying that if there was a real prospect of an adjustment removing the disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, but the Employment Appeal Tribunal was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one. When those propositions were put to Mr Boyd, he did not disagree with them.”

What Noor, Foster and Dominique say is that any adjustment (accommodation) can still be reasonable even if it would not ultimately prevent an employee being dismissed.

Decision

Ultimately, the Adjudication Officer decided that the Complainant was suffering from a disability in accordance with the Act.

The Adjudication Officer determined that the Respondent did not discriminate against the Complainant on the grounds of disability in respect of discriminatory dismissal, but did fail to provide him with a reasonable accommodation with his disability within the meaning of S16(3) of the Act. This complaint was deemed to be well founded, and the Adjudication Officer ordered the Respondent to pay the Complainant €5000 in compensation.

Furthermore, the Adjudication Officer ordered the Respondent to review its policy on reasonable accommodation and provide training on the policy to all of its employees in a staff management role.

Takeaway

The takeaway for employees considering bringing a complaint under section 77 of the Employment Equality Act, 1998, is to consider whether they are suffering from a disability in accordance with the Act, and if so, what is the source of the discrimination, or failure on the part of their employer.

For employers, it will be necessary to demonstrate that, they were in fact made aware of the employee suffering from a disability, and that they took reasonable steps to accommodate or assess how that disability, would impact the work of the employee concerned.