What is Reasonable? The Operation of ‘Reasonable Accommodation’ and ‘Disability’ Provisions Under The Employment Equality Acts 1998–2015

Decisions under the Employment Equality Acts 1998–2015 were not required to anonymise the parties’ identities to the dispute, as was the case with other employment legislation. Adjudicators, though, had the power to anonymise them and often did so where they felt sensitive issues were raised such as in medical evidence. Characteristics that could be discerned in many cases were the gender of the complainant and the sector where they worked, and this revealed important insights. Cases primarily involved employees in private sector organisations, with manufacturing presenting as the most frequent area of employment (Table 2). Complainants were more likely to be male (56%) and to work in non-managerial positions (82%). Overall, the number of decisions might be considered relatively low given the length of time examined, the size of the workforce and the prevalence of disability as people get older. Comments made by the advocacy representative of the Irish Wheelchair Association point to factors that may contribute to the low number of decisions. They noted that Ireland had a very large gap, of 45 percentage points, in employment rates between people with and without disabilities and they believed that “many people do not know their rights and after sustaining an injury or acquiring a disability many people are unable to fight”. In addition, many complaints referred to employment rights bodies do not reach the decision stage because they can be settled in mediation, or they can be withdrawn or settled by the parties themselves (Equality Tribunal, 2014).

A differentiator between employment equality legislation and other laws like unfair dismissals relates to the burden of proof. In the latter, the burden of proof lies with employers whereas in the former, complainants must first show a prima facie case of discrimination before the burden of proof switches to employers. The facts presented by the claimant from which discrimination is inferred must be of “sufficient significance” before a prima facie case is established (A Care Assistant v A Voluntary Organisation, ADJ-00007638/ADJ-00009592, 2017). For a complainant to successfully argue a breach of their rights regarding reasonable accommodation, they must first satisfy the legislative requirement that they have a disability within the meaning of the Acts. The review of cases shows a broad range of conditions presented by complainants - 41 in total (Table 3). Back injuries were the most prominent accounting for 18 of the 95 cases that progressed beyond preliminary issues, followed by diabetes and depression. Physical conditions appear to dominate with a 3:1 ratio of physical conditions to psychological/psychiatric conditions. The first decision involving a psychological/psychiatric condition was not issued until 2012, but between 2012 and 2020, the ratio of physical to psychological conditions was 2:1. In interviews, the HR director considered larger organisations to be “more understanding of mental illness” because workers more openly speak about their experiences but believed that challenges remain in smaller organisations which may not have sufficient understanding of mental illness or the resources to accommodate disabilities.

The data show that respondents (employers) rarely contested the disability presented by the complainant (employee) (only in 10 decisions). Where they did, employers had a 40 per cent success rate leading to the dismissal of the full complaint regarding reasonable accommodations. The employers’ success generally rested on whether or not the condition had a significant impact on the individual and whether it was of a long- or short-term nature. In the four cases won by employers at least partly on definitional issues, the conditions were of a short-term nature, and related to mental and physical health. Two were claims relating to stress where adjudicators were hesitant to designate the claims as disabilities in the absence of a medical diagnosis and were cognisant of a Labour Court Determination (Government Department v A Worker, EDA094, 2009) which stated:

if the [employment equality legislation] were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.

Where the employer unsuccessfully contested the complainant’s protection under the definition of disability, almost all the conditions were of a long-term nature. The small number of cases where employers contested that the complainant had in fact a disability suggests widespread acceptance by employers of the definition of disability. Given the breath of the definition in the Acts, it is unsurprising that decisions found in favour of the complainant over twice as often as not. Where employers did contest cases, a medicalised process characterised hearings with adjudicators relying, at a minimum, on the diagnosis of general practitioners while some also used the expertise of consultant doctors and occupational health specialists, and adjudicators explored definitions of disabilities in medical texts and case law. The Irish Wheelchair Association representative considered the definition of disability in the legislation as conforming to a medical model of disability which “has no place in today’s society. The issue is not the person with the disability, but the restrictions imposed by the state/environment”.

The most common form of accommodation sought by claimants involved a modification of the job itself with very few requiring the purchase of special equipment or adaptations to the physical infrastructure of the workplace (Table 4). As expected, all requests for adaptations to infrastructure and purchase of special equipment came from complainants with physical disabilities. The terms “transfer” and “light duties” were used interchangeably throughout the case reports to describe requests for changes to the nature of work through a job transfer or changes in tasks. Examples include, in manufacturing, requests to move from production line jobs to warehouse positions or, in retail, from the grocery department to the clothing department. Together, “transfer/light duties” appeared in almost half of the decisions (Table 4). In only a small proportion of decisions (7%) did accommodations concern adaptations to physical infrastructure or the purchase of special equipment.

The extent to which non-infrastructural accommodations were sought by complainants was of no surprise to the employer practitioners interviewed. The IBEC representative noted a trend amongst their member employers of claims about the “effects of shift/night work on employees’ health and well-being and these outcomes can be stress related and mental health issues as employees seek to move to day shifts or reduced hours to enable them to have a better balance work/life balance”. The IBEC representative and the HR director stated that non-infrastructural claims were more challenging for employers particularly in private sector manufacturing where much of the work can be shift based and the organisation may not have alternative roles to accommodate employees. For the IBEC representative, accommodations requests relating to working hours were coming at a time “when many employers are looking at shift working and increasing hours of operation to have better efficiencies in the workplace”. According to the HR director, employers contested legal cases concerning accommodation requests for transfers because they might require the organisation to hire an additional person and employers might fear facilitating such requests would trigger additional claims by employees seeking alternative working arrangements. In contrast to accommodations involving transfers and changing hours, the IBEC representative was of the view that physical accommodations were less problematic for employers because they were “less costly for them in the long run”. The WRC and Equality Tribunal interpreted the reasonableness of accommodations as proposed by the complainant themselves and processed by the respondent. Thus, the propensity toward modifications in the duties of the complainant and their working hours are indicative of complainant desires rather than adjudicator demands.

Employers were found to have breached their obligation to provide reasonable accommodations in just over a third of decisions and the majority of these turned on employers’ adherence to procedural issues. While the Acts do not specify the procedural obligations on employers, the decisions of employment rights bodies frequently cited case law such as Humphreys v Westwood Fitness Club (2004] ELR 296 which sets out the necessity for the employer to:

“Examine the factual position and seek clear medical guidance regarding the employee’s capability including the degree of impairment arising from the disability and its likely duration; and

Three categories of employer failure were evident in cases:

the employer’s failure to undertake sufficient enquiries to determine the extent of the employee’s disability and consider whether special treatment and facilities could be provided (Assessment);

A lack of engagement by employers with disabled employees and their representatives such as union and medical personnel was the most common procedural failure identified by adjudicators followed by a deficiency in their obligations to undertake assessments of the individuals. Recent decisions have referred to the seminal Supreme Court decision in Nano Nagle School v Marie Daly [2019] IESC 63 where MacMenamin J. explored the issue of employee consultation. While he said that there was no mandatory duty on employers to consult with an employee in each and every case, and the legislation does not provide for compensation where consultation is absent, “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” (para. 105). The IBEC official considered “the bar to be very high” as regards the procedural obligations on employers, particularly in relation to the need for risk assessments and for employers to fully explore the employee’s disability.

Section 16(1) of the Employment Equality Acts provide that an employer is not required to recruit, retain, promote an individual if they are not “fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position”. This is often referred to by adjudicators as the statutory defence, whereby employers legitimise their decision not to grant the full accommodations requested based on the competence and capability of the employee. The ‘defence’ is qualified by Section 16(3) which stipulates that the disabled employee must be considered competent and capable when reasonable accommodations are provided by the employer. In Mr B v A Metal Processing Company, (DEC-E2013-196, 2013), the Equality Tribunal relied on the Labour Court’s ‘objective test’ on reasonable accommodation:

…the scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.

Adjudicators often considered the nature of accommodations requested and the financial position of the organisation. In Mr B, the employee was no longer competent to perform the role of a driver due to a disability and the employer transferred him to a different role and instituted a buddy system. This lasted for a year until the buddy was made redundant during a period of large-scale redundancies. The Equality Tribunal concluded that the costs of reasonable accommodations, to retain a buddy when no other work was available for them, amounted to a disproportionate burden. In Mr Fergal O’Reilly v UPS CSTC Ireland Ltd. (DEC-E2013-077, 2013), the Equality Tribunal noted that the company had a turnover of €70 million and a net profit of €4.5 million for the year and that “in such circumstances, I do not accept that the respondent would not have been able to provide reasonable accommodation for the complainant following a full examination of the situation”. Similarly, in A Medical Secretary v the HSE West, 2013, the adjudicator awarded the complainant €70,000 and ordered the HSE to make physical modifications to the building to accommodate an employee “…given the overall budget for the Regional Hospital”. Decisions since 2019 on accommodations took guidance from the Supreme Court decision in Nano Nagle which considered the extent of an employers’ obligations in situations where an employee may be no longer competent to perform their role fully. The Supreme Court decided that reasonable accommodation can include the distribution or removal of essential as well as non-essential duties, but the duty of accommodation is not infinite. MacMenamin J. stated;

It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden”…The test is one of reasonableness and proportionality; an employer cannot be under a duty entirely to redesignate or create a different job to facilitate an employee (para. 89).

The WRC has referenced the authority of Nano Nagle. For example, in A Manufacturing Team Member v A Manufacturing Company (ADJ-00012037, 2019) the employer argued that the employee, who was seeking a change in working hours, was not capable of performing the core elements of their role and the obligation to provide reasonable accommodation did not extend to creating a new role or removing core duties from the job. The WRC concluded that in applying the principles set in Nano Nagle, the employer’s obligation to provide reasonable accommodation did not extend to creating an entirely different job and on that basis, complainant had failed to raise a prima facie case of discrimination. Overall, in 7 of the 52 decisions reviewed which favoured the employer, adjudicators made specific pronouncements on the disproportionality of the accommodations sought, denying complainants paid assistants, new shift patterns, expensive software upgrades and new office spaces.

Importantly, employment equality cases emphasise the care employers must take in addressing disability issues and how they must refrain from uneducated assumptions about accommodations required. Instead, an assessment of accommodations must follow a thorough examination of the employee’s disability and environmental barriers to their participation in work. In Mr Fergal O’Reilly, the employer had believed that the employee’s accommodations request would require hiring an additional person at an annual cost of €28,000 but the Equality Tribunal criticised the company for not proactively engaging with the employee or doctor and they referred to a Labour Court decision (A Government Dept v A Worker, ADE0156) where it stated that

The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability ...

WRC decisions praised employers who had a process-oriented approach in dealing with requests for accommodations, who invested in occupational health advice at an early stage, maintained communication with the employee, assessed requests carefully and attempted to facilitate them. During interviews, the IBEC representative noted that WRC decisions have rarely been overturned on appeal, but they believed that they sometimes interpreted the disproportionate burden provision “out of context”. In this regard, they noted that employers must take into consideration many factors in deciding requests for accommodations including industrial relations issues and they commented that WRC decisions may not take full account of the real size of a company, for example, by focusing on the large size of a parent company rather than the small size of a subsidiary. Yet the case review shows that decisions rarely proceeded to determinations on proportionality, and where they did, the trend has been in favour of employers. Decisions turned on employers’ procedural duties and it appears that process itself is as important as the outcome. The Irish Wheelchair Association representative criticised the use of the term ‘disproportionate burden’ in the law because it was “too closely linked with the person with a disability”.

The review of cases indicates that it is challenging for claimants to succeed. Of the 95 cases analysed, complainants were unsuccessful in almost two thirds of decisions. Ten complaints failed because (i) the complainant did not attend the adjudication hearing or (ii) claims were submitted outside of statutory time limits, or (iii) the complainant had submitted the same claim under multiple laws. The remainder (52) failed over more substantive issues like the complainants’ impairment did not meet the definition of disability or the employer had met their obligations on reasonable accommodations.

Where successful, complainants could be awarded various forms of redress including orders for reinstatement or reengagement in the case of discriminatory dismissal, orders that an employer should repay arrears in wages, orders that an employer should take a specified course of action, or that an employer should pay compensation to a maximum of two years remuneration to an employee. Of the successful complaints (33), 30 were awarded compensation and these were relatively low - 12 involved compensation of less than €10,000 and all bar four involved compensation of less than €30,000. In addition to compensation, adjudicators also ordered employers to take courses of action such as to transfer an employee, to provide psychological support, to provide a new office with bathroom facilities, to allow the employee time off to attend medical appointments, to reassess reasonable accommodations, and to train staff on disability awareness. In three decisions found in favour of complainants, no financial redress was made but the employer was ordered to take actions like to provide reasonable accommodation or to reinstate the employee following dismissal. The majority of decisions in favour of the complainant concerned discriminatory dismissal (23) and compensation was the most common redress. This is not unusual in dismissal cases more generally where the adjudicator or the parties themselves can consider the employment relationship is beyond repair. Commenting on dismissals and the importance of procedures, the advocacy representative of the Irish Wheelchair Association was of the view that in “many cases employers are afraid of “disability” and are unsure how to deal with a person in this environment. They are unaware of entitlements that are available to them and their employees to make reasonable accommodation so letting someone go from their job is seen as an easier option”. Three of the four highest financial awards were issued in cases of discriminatory dismissal which is unsurprising as these awards considered the financial damage the claimant experienced from job loss and the adjudicators specifically noted the employers’ extensive resources.

This study contributes to our understanding of national legislation on disability and reasonable accommodations (Waddington and Lawson, 2009; Kovačević, 2014; Harpur et al., 2012). It also incorporates a profile of claimants as well as practitioner perspectives, both of which are often absent in studies of disability anti-discrimination legislation (Buckley and Quinlavin, 2021; Kovačević, 2014; Harpur et al., 2012). Studies of disability discrimination in Ireland have not identified sectoral variation in reports of discrimination (Banks et al., 2018) and, while legal claims are not equivalent to experiences of discrimination, this study provides an analysis of the types of jobs where disabled worked pursued legal complaints. Complainants were mostly male and from specific sectors, notably manufacturing. The prevalence of claims from manufacturing, retail and the public sector, are perhaps not unusual in the context of statistics on workplace injuries. Health, manufacturing, retail, and public administration accounted for almost two thirds of all non-fatal workplace injuries in 2018 (HSA, 2019). It was surprising though that sectors with high rates of injuries, like agriculture, and sectors with high exposure to physical and mental stressors were not more common in claims such as construction and caring (non-medical). An extensive range of impairments was identified in claims, and they were notable for the gap, though closing, between physical and psychological conditions. This indicates a gradual broadening of the diversity of conditions appearing before employment rights bodies though notably, there were few cases involving people with intellectual disabilities with only one complainant with a condition on the autism spectrum in the period under review. Relatedly, most of the accommodations sought by employees concerned the nature of the job or working conditions rather than infrastructural changes. In interviews, the expert practitioners noted the changing nature of jobs and employers’ need for workplace efficiencies such as through atypical working hours patterns. These efficiencies have arguably led to work practices entailing psychological stresses for employees, but organisations differ in their capacity to address mental health issues. Employer representatives believed that employers have greater concern over the consequences and costs of providing non-physical than physical accommodations. In relation to the process of reasonable accommodation claims, we find that employers rarely contested employees’ claim that their impairment met the definition of disability. In examining the definition of disability, adjudicators considered the temporal nature of the impairment and whether it had attracted a medical diagnosis. Most cases turned on the issue of reasonable accommodations and decisions emphasised, where employees won, that employers must be pay close attention to assessing accommodations sought and engaging with the employee in a timely manner. Given that awards in discrimination cases are critical to recognising an injustice and deterring future violations (Sternlight, 2004), this study identified in an Irish context, a low rate of claimant success and therefore a limited number of awards have been issued.

A key outcome of legislation and its interpretation in case law has been that the onus is on employers to engage in a transparent and fair process in dealing with accommodations for employees with disabilities. In the decisions reviewed, adjudicators examined whether employers inquired into, and considered, accommodations in a timely manner and if they have done so in consultation with the employee. For this reason, employer organisations have encouraged employers to deal with equality issues by having in place effective policies and procedures (ISME, 2011). In this way, the legislation has accentuated the trend towards the proceduralisation of the employment relationship (Wallace et al., 2020).

Despite the presence of anti-discrimination legislation, research nationally and internationally shows that discriminatory practices persist. Not only actual discrimination, but the fear of discrimination can prevent people with disabilities from seeking or remaining in employment (Banks et al., 2018) and from disclosing their disability to an employer, especially regarding mental health issues (Elraz, 2018; Scanlon et al., 2020). Studies suggest that such worker fears are at times warranted as managers can be reluctant to hire and retain people with disabilities. Common reasons proffered by managers for this are their lack of knowledge about how to accommodate workers with disabilities, their concern about (and overestimation of) the potential costs of accommodating someone with a disability, and their worry about greater liability to legal actions if they employ someone with a disability (Kaye et al., 2011). Employers can also hold negative beliefs regarding the nature of psychological conditions and have concerns about the performance ability of such individuals (Biggs et al., 2010). These comments illustrate the “unavoidable” tensions that can exist between “fairness as opposed to employer prerogatives” (Ford, 2014: 1415). Various measures have been proposed to tackle employer concerns including employer education on the benefits of hiring disabled persons and on employers’ legal obligations, state income supports to workers, and financial incentives to employers (Kaye et al., 2011; EPRS, 2020; Watson et al., 2015). In recent years, IBEC has advocated the “business case for diversity” and launched a voluntary initiative, the Reasonable Accommodations Passport scheme, with the Irish Congress of Trade Unions (IBEC/ICTU, 2019: 1–2). The comments of interviewees in this study suggest that some employers may need support in understanding and managing disability accommodation issues. Ultimately, as Robert and Harlan (2006) argue, while anti-discrimination legislation holds organisations to account for their practices, it is but one measure towards eliminating discrimination and organisations must be willing to examine their beliefs about disability and recognise how they encourage and tolerate discrimination.

There are several limitations to this research which could be addressed in future research. While this study focused only on adjudicated decisions in discrimination cases, future research could examine the workplace experiences of employees and employers in dealing with disability and accommodation issues. Given the legal interest of this study, further research could assess how the law influences employees and their representatives to exercise their rights in negotiations with employers. For example, previous research found that trade unions believe that employment law is effective in helping protect minority groups and many frequently threaten use of the law as a negotiating tactic (O’Sullivan et al., 2015). A second related limitation of this study was the limited number of practitioner contributions and future research could expand the qualitative analysis of practitioner and disabled employees’ perspectives. This article pointed to the medicalised adjudicative process in legal complaints and to the medicalised approach taken by employers in assessing disability and accommodation requests in the workplace. Further research could explore how such processes impact employees and their sense of belonging in the workplace.

There are additional areas worthy of additional research. As the findings in this study revealed, physical conditions outnumbered psychological ones in discrimination complaints. This is unsurprising given evidence that employees are particularly reluctant to disclose mental health issues and employers also believe underreporting is a serious issue (O’Brien, 2020). There has been much greater attention paid to mental health issues in the workplace in recent years with employer organisations offering guidance and support to employers (O’Donnell, 2021). Further research could investigate whether such measures have beneficial outcomes in terms of employers creating more supportive workplace cultures for employees to disclose psychological conditions. Lastly, further inquiry arising from this research concerns the employment characteristics of claimants. The review of decisions revealed prevalence of reasonable accommodation claims from employees in private sector manufacturing but also to a dearth of claims from the public sector given the size of its workforce, and from sectors where jobs would be expected to have significant physical or psychological stresses. The reasons for such sectoral variation in cases are worthy of examination. We can conjecture the potential factors influencing sectoral variation including sectoral differences in employment rates of disabled persons, the extent of proceduralisation across sectors, and the degree to which disabled people feel comfortable disclosing disabilities.