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Labour Court Overturned Wrc Award & Held That The Reduction In Working Hours & Pay Was Not A Failure To Provide Reasonable Accommodation

Introduction

In a recent decision of the Labour Court in the case of Margaret Hanigan v Health Service Executive, EDA2013 the Labour Court overturned the decision of the WRC. The WRC had awarded the Complainant €20,000 for loss of earnings on the basis that the HSE were in breach of the Employment Equality Acts 1977-2015 (the “Acts”) for failure to provide reasonable accommodation. The Labour Court found that the complaint was not well founded and that the reduction in working hours resulting in the Complainant’s reduction in salary was not a failure to provide reasonable accommodation in this case.

Background

The Complainant has been employed by the Respondent at Louth County Hospital since September 1996 where she had predominantly worked in the Catering Department, working 70 hours per fortnight and paid at an hourly rate of pay. As a result of a visual impairment condition, the Respondent’s Occupational Health Department recommended that the Complainant should be transferred from the kitchen area as she could no longer carry out her catering duties. The Complainant was required to undergo training at the National Counsel for the Blind (NCBI) to identify her training and assistance needs in order to facilitate her redeployment to a clerical role. The Complainant was paid in full for three months while she attended the NCBI.

Thereafter the Complainant was assigned to switchboard duties working full time hours. It soon after transpired that the Complainant was unable to see a fire alarm panel near the switchboard which alerts the switchboard operator to the source of the fire. The Respondent duly looked into making an adjustment to the switchboard so the Complainant could remain in that position. However this would come at a cost of approximately €10,000 which the Respondent contended was a disproportionate burden as the Respondent had a significant budgetary deficit at the time. Nevertheless, a short time later this role became predominantly automated which significantly reduced the hours available for that role regardless.

Thereafter the Complainant undertook some additional clerical duties in the Physiotherapy Department which meant that she was working 35 hours per week. However, as there was already a full time clerical officer it soon became apparent that there was not enough work for two people and her hours were reduced to 24 hours per week. In May 2018 as part of a conciliation process the Complainant was offered the opportunity to formally take up clerical status with an additional increment on the Clerical Officer pay scale. This was rejected by the Complainant. The Complainant is currently working in the Diabetic Day Centre having been transferred due to insufficient work in the physiotherapy department due to Covid-19.

The Complainant submitted that she was treated less favourably than her colleagues who do not have a disability on the basis that the Respondent’s failure to maintain her previous hours of work and thereby reducing her salary amounted to less favourable treatment. The Complainant also submitted that the Respondent failed to make reasonable accommodation for her disability.

Decision

The Labour Court held that it would be unreasonable to hold that having facilitated the employee the employer is statutorily obliged to maintain his or her previous level of earnings where an employee is not working full time hours. In that regard the Labour Court doubted that the requirement of reasonableness could be relied upon so as to oblige the Respondent to pay the Complainant for work which is not available. The Labour Court concluded that the efforts made by the Respondent allowed the Complainant to continue in employment with the Respondent when her original working conditions were found to be entirely unsuitable due to her disability. The Labour Court also did not accept that the Respondent’s alleged failure to increase her working hours amounted to discriminatory treatment contrary to the Acts or a failure to provide reasonable accommodation. Finally, the Labour Court was satisfied that based on the Respondent’s proven commitment to the Complainant that its response to the Complainant’s disability comes within the scope of reasonable accommodation and appropriate measures envisaged by section 16 of the Acts. The Labour Court put particular emphasis on the fact that the Respondent kept the Clerical Officer role offer open for the Complainant which facilitated the Complainant to earn more money and work more hours but which the Complainant turned down.

Take away for employers

This case gives further insight into what can be reasonably expected of employers when dealing with employees who require reasonable accommodation in the workplace. The decision allows employers to explore alternative positions for employees within the company even if this involves a lower income for the employee if deemed reasonable in the circumstances.

Link: https://www.workplacerelations.ie/en/cases/2020/september/eda2013.html

30th September 2020

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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