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Update on the Practical Application of Discrimination Law
PRACTICE AREA GROUP: Employment, Pensions and Benefits
In this hot topics article, we look at recent case law for lessons on how an employer can successfully defend a claim of discrimination where an employee has a legal disability. The Nano Nagle v Daly  IESC 63 Supreme Court decision has crystallised reasonable accommodation and the duties of employers in complying with Section 16 of the Employment Equality Acts 1998-2015 (EEAs). While this case is now waiting for a full rehearing before the Labour Court, the Supreme Court decision offers employers useful guidance and welcome clarity. For example, it is now clear that an employer does not have to create a new role for a (legally) disabled employee. It is also clear that an employer’s adherence to and consideration of the various elements of the reasonable accommodation test is a high bar to meet and is indisputably onerous.
In this article we provide an up-to-date analysis of the steps an employer can take to successfully defend a Workplace Relations Commission (WRC) case. We also provide an overview of key statutory provisions and case law in this area and we look at the emerging UK case law on vegetarianism/veganism as one to watch.
By way of brief reminder on what the Supreme Court judgment in the Nano Nagle case means for employers generally when it comes to providing reasonable accommodation under Section 16 of the EEAs, employers should:
• Distinguish between essential and non-essential duties;
• Consider a redistribution of duties to allow employees with a disability to focus on the tasks they are capable of performing;
• Establish the measures that could be taken to reasonably accommodate the employee in carrying out their role – this may include adaptation of the employer’s premises and equipment, patterns of working time, redistribution of tasks, a change to work patterns or the provision of training or integration resources;
• Take appropriate multidisciplinary medical advice;
• Evaluate whether such measures (particularly the redistribution of tasks) would impose a disproportionate burden on the employer – factors that can be taken into account include the financial and other costs entailed, the scale and financial resources of the employer’s business and the mandatory obligation of inquiring into obtaining public funding or other assistance;
• Consult with employees, unions and employee representation throughout the process; and
• Record all steps taken and insofar as is practicable, share efforts made by an employer to reasonably accommodate a (legally) disabled employee with them and their union representative where appropriate.
Consideration of the WRC’s approach in assessing an employer’s compliance with its obligation to consider reasonable accommodation is complex and there is no one size fits all approach. That said, there are some key efforts an employer can make in line with its Section 16 (EEAs) obligations to best position itself to deal with reasonable accommodation.
Typically, in assessing the first limb of whether discrimination is at play, an Adjudication Officer considers whether a complainant’s disability comes within the definition of disability under Section 2 of the EEAs. Although the definition of disability under Section 2 of the EEAs is broad, the Labour Court is taking an increasingly strict approach as to the threshold it will set for the definition to be met. This is clearly shown, for example, in its recent decision in Hickey v Houses of the Oireachtas (11 June 2019, EDA 1918), where the Labour Court, relying on the judgments of the European Court of Justice in Chacon Navas v Eurest (C¬13/05) and Jette Ring v Dansk (C-335/11), confirmed that for the requirements of the definition of disability to be met, the complainant must be able to demonstrate that the disability hinders “the full and effective participation of the person concerned in professional life on an equal basis with other workers”. In particular, the Labour Court has clarified that disability is not the same as illness and illness in and of itself does not meet the definition of disability.
The second limb of the assessment is to establish whether the complainant has satisfied Section 85A of the EEAs, which requires the complainant to discharge the burden of proof by demonstrating that there is a prima facie case of discrimination on the grounds of his or her disability and based on the facts of the case. An Adjudication Officer will critically analyse if a prima facie case of discrimination exists.
A critical, practical takeaway from recent case law for HR professionals dealing with this type of scenario is that the support given by HR to a complainant such as meeting with a complainant for short, frequent meetings, the offer of ongoing support, counselling sessions and a phased return to work will go to the root of whether an employer behaved reasonably and in line with its common law and statutory duties.
One to Watch
A recent UK employment tribunal analysed whether vegetarianism is a protected characteristic under the equivalent of their EEAs. It ruled that it is not but an eagerly awaited decision is awaited in the UK on whether ethical veganism is capable of being protected as a philosophical belief.
This isn’t a case that has arisen in Ireland – yet – but could be open to interpretation under the ground of religion in the EEAs. Existing EU case law and the European Charter on Human Rights extend to non-religious philosophical beliefs and our own EEAs should be interpreted accordingly, meaning that the potential for a complaint of discrimination on the grounds of ethical veganism is potentially in the pipeline for the WRC and we await with interest the outcome of the UK employment tribunal.
Discrimination in the workplace, at recruitment and selection stage, during the employment relationship and at termination is fraught with complexity. The seven-year ongoing journey of the Nano Nagle decision through the Irish legal system is a clear crystallisation of the care that needs to be taken when dealing with discrimination.
This article is co-authored by parter Deirdre Crowley and senior associate Eimear Boyle at Matheson.
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This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Legal advice should always be taken before acting on any of the matters discussed.
This piece was authored by senior assocaite for Matehson's Commercial Litigation Group Eimear Boyle and partner for Employment, Technology and Innovatoin Group Deirdre Crowley.