The recent Supreme Court decision in the ‘Nano Nagle’ is
worth a closer look by both employers and employees who are concerned with what
is expected by way of ‘reasonable accommodation’ for an employee with a
This obligation on an employer to provide ‘reasonable accommodation’
to an employee is set out in section 16 of the Employment Equality Act 1998.
Section 16 of the act provides, inter alia,
F33 [ (3) ( a ) For the purposes of this Act a person who
has a disability is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully competent and capable
on reasonable accommodation (in this subsection referred to as ‘ appropriate
measures ’ ) being provided by the person ’ s employer.
( b ) 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 the measures would impose a disproportionate
burden on the employer.
( c ) In determining whether the measures would impose
such a burden account shall be taken, in particular, of —
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer ’s
(iii) the possibility of obtaining public funding or
(4) In subsection (3)—
F34 [ ‘appropriate measures ’ , in relation to a person
with a disability —
( a ) means effective and practical measures, where
needed in a particular case, to adapt the employer ’ s place of business to the
( b ) without prejudice to the generality of paragraph
(a) , includes the adaptation of premises and equipment, patterns of working
time, distribution of tasks or the provision of training or integration
( c ) does not include any treatment, facility or thing
that the person might ordinarily or reasonably provide for himself or herself;
In overturning the Court of Appeal decision in the case the
Supreme Court held that there was no reason why providing reasonable accommodation
should not involve a redistribution of duties in the workplace, provided this did
not place a disproportionate burden on the employer. In making this finding the
Supreme Court held that it was not enough for the employer to merely divide up
the job between essential duties and non-essential tasks, as the Court of
Appeal had decided.
You will note from section 16 above that there is a non-exhaustive
list set out in the Employment Equality Act 1998 which includes ‘the
adaptation of premises and equipment, patterns of working time, distribution of
tasks or the provision of training or integration resources’.
This Supreme Court decision goes a step further in placing
an obligation on the employer.
It has done so by suggesting that the employer must look not
only at a redistribution of the tasks of the role but must look at a
redistribution of the essential duties and functions of the employee’s job. The
Supreme Court arrived at this finding on the basis that the Act in question obliges
the employer to consider all appropriate measures to provide reasonable accommodation
provided the cost of doing so would not be disproportionate.
The Supreme Court held, in essence, that the ‘test is one of
reasonableness and proportionality’ but there was an obligation on the employer
to explore whether public funding would be available to assist with the provision
of reasonable accommodation.
As for consulting with the employee the Court of Appeal held
that there was no obligation for employee participation in the process. The
Supreme Court on the other hand held that while there was no statutory
obligation to consult with the employee it made sense and would be sensible for
the employer to do so.
The Court also reaffirmed the long held position that the
employer was not obliged to create a different job for the affected employee.
Rap on the knuckles for the Labour Court
The Supreme Court also gave a slight rap on the knuckles to
the Labour Court by finding that it had failed in its duty to consider all
relevant evidence in the case and failed to provide reasons for its conclusions
based on the evidence and sent the case back to the Labour Court for further consideration
on specific points.
The Court also criticised the Labour Court for failing to give any reason for the level of compensation it had awarded on the grounds that fair procedures would dictate that parties are entitled to know the reasoning behind the level of an award.
The Labour Court has awarded the maximum amount open to it-€51,168-for
the effects of discrimination in a case involving an employee returning to work
after maternity leave.
Karen Kelly worked for G4S Secure Solutions (Ireland)
Limited and had been awarded €11,602.50 at a Workplace Relations Commission
hearing. Both employer and employee appealed this decision, the employee not
being satisfied with the amount awarded and the employer not happy with the
decision to find discrimination against Ms Kelly.
Ms Kelly had brought her claim for discrimination pursuant
to the Employment Equality Acts 1998-2015 on the basis that the employer did
not let her return to the post she had occupied prior going on maternity leave.
Ms Kelly had been employed on a site in Swords but after her
return from maternity leave G4S had instructed her not to attend the Swords
site. She was advised that she was not allowed to return to that site because
the employer’s client in Swords had requested that she not return to their
Ms Kelly was offered a fixed term contract-of 3 months,
later extended to 6 months-in the employer’s head office in Ballymount. This
was problematic for the employee, however, as it involved a 4-hour round trip
to work and no other offers were made to her.
In April 2018 the employer stopped paying Ms Kelly and Ms
Kelly requested her P45 in June 2018.
Ms Kelly’s case was founded on discrimination on the basis
that had she not gone on maternity leave she would in all probability continue
to work in the Swords site on a permanent or CID contract.
The employee’s case
Ms Kelly’s side argued that where a dismissal is based on a discriminatory
ground the Labour Court is obliged to take into account the manner and effects
of the dismissal to ensure any award is effective, proportionate and dissuasive
in accordance with the principles in the ECJ case of Von Colson& Kamann
v Land Nordrhein-Westfalen  ECR 1891.
The fact that she was not given her P45 was also raised as
an issue which compounded Ms Kelly’s difficulties in accessing social welfare
The employer’s case
The employer’s position was that she was not dismissed nor
discriminated against but the employer’s hands were tied insofar as it was
their client who insisted that Ms Kelly not be sent back to the Swords site.
The employer also stated that Ms Kelly had resigned by reason of her seeking
her P45 and they had done their best to get her back onto the Swords site, but
the client would not agree to this.
For this reason, they claimed, no discriminatory dismissal
Labour Court findings
The Labour Court referred to the general right to return to
work on the expiry of protective leave, as set out in the Maternity
Protection Act 1994 and to the Employment Equality Acts dealing with discrimination
in relation to work.
The Court also referred to the right to suitable alternative
work in certain circumstances on return to work.
The court found that the employer could not rely on the insistence
of the employer’s client that she not return to Swords as trumping Ms Kelly’s
It also found that the employer could not rely on the
argument that it was not reasonably practicable to return the employee to her
previous job and that a role involving a 4 hour round trip was a suitable alternative
as envisaged by the Maternity Protection Act 1994.
The Court found that prior to her maternity leave Ms Kelly
was working 30 minutes from home on a permanent contract; after her protective
leave she was expected to travel 4 hours each day and work on a fixed term contract.
Based on those facts the Court did not accept that the terms of the contract
offered were ‘not less favourable’. The Court noted that no other option was
put to the Complainant at any stage in the process.
The Labour Court was satisfied that this was a discrimination-based
dismissal and awarded the maximum amount the Court could award, €51,168, as the
compensation in such cases must be proportionate, effective and dissuasive.
She knew a small number of Croats living in Dublin and they had told her she would find work here quickly enough.
They were right and she started a job in a coffee shop in the southside of Dublin within 2 months of arriving in Dublin. She quickly settled in Dublin and shared a house with 7 other people-2 Croats, 3 Poles, and 2 Irish.
Her English was not fluent but improving and she spoke well enough to get by, get her job done, and avoid too much confusion with anyone she came into contact with in the course of her days.
She spent a few weeks just clearing tables, cleaning, checking in orders, cleaning toilets, running to the cash and carry but soon she was pressed into service serving customers.
She found it difficult at first and was afraid of making serious mistakes.
But she learned quickly and was popular with the regulars who recognised her pleasant, friendly personality and smile, and her willingness to learn.
When she came to see me for the first time she fidgeted and played with a ring she wore.
She told me about her background, her 3 brothers and family in Zagreb. She never went into great detail when speaking with me about her time in Zagreb but her face darkened noticeably and I could see she was not comfortable speaking about it.
She did tell me, though, that she was on her way to primary school in May, 1995 when rocket attacks on Zagreb killed her uncle and aunt.
When she was sexually assaulted in the workplace, however, she made an oblique reference to her childhood in Croatia.
She said, “I’ve been through a lot at home in Croatia, I’ve seen most than most people my age, but this thing in the workplace was just a humiliation; I have put up with a lot of stuff before I came to Ireland but this was too much to expect me to take”.
She said the worst part wasn’t the assault, however, it was not being believed when she complained. And the investigation that was carried out being a complete whitewash and waste of time.
She had worked in the coffee shop for 7 months or so and was getting good experience under her belt. Her problems started when the manager of the coffee shop decide to go travelling for a couple of years with her boyfriend and the two of them went to Canada for a year.
The new manager, Seamus, was friendly at first; maybe too friendly. Always grinning at her like a shark.
Soon,however, Ana began to feel uncomfortable with Seamus’s attention. He was just weird and creepy.
At first he just made a small number of jokes with sexual innuendo.
Most people would probably consider them to be just part and parcel of the workplace, banter if you like.
But the “jokes” and innuendo got worse to the point where the situation was wearing Ana down.
She felt like quitting her job rather than face these dumb, offensive remarks every day-remarks about her appearance, her private life, her boyfriend, and so on.
Ana wasn’t in the job too long, however, and was still on probation so she felt the best thing to do might be to keep her head down, not rock the boat, and hope that Seamus would lay off or get fed up and just leave her alone.
She spoke to some of the other girls about it and they told her they had to put up with the same crap. They told her they were afraid to complain because they were not Irish and he was, and they were afraid they would not be believed and, anyway, who were they to complain to?
They weren’t sure of the whole situation, the legal situation, who was to help them; it was completely new to them but they were sure that the new manager would probably have more sway and influence with the owner than they had and would be more likely to be believed.
Besides it would be easier to replace one of the support or waitressing or retail staff rather than the manager. So they felt in a vulnerable situation.
What’s more, if they complained and were not believed the atmosphere in the workplace would be even worse, and they would feel like fools.
So they just stayed quiet and hoped he would get fed up and lay off.
Ana took the same approach and did nothing about the ‘jokes’ which were getting worse and more graphic.
Unfortunately this decision, however, backfired for Ana because Seamus took encouragement from her silence and her failure to make clear that his comments were unacceptable. He was emboldened. It got worse, not better, as time went on.
It was about 11 months after starting in this workplace that the final incident happened.
She remembered it well, it was a Tuesday afternoon at 3.45 pm. She could not believe it at first.
At first she was outraged but was so surprised and shocked that she wasn’t even sure it had actually happened.
What happened was Seamus had walked behind her back into the kitchen and put his hand on her bottom and whispered “you have a fine arse, Ana”.
Ana was stunned. She did not know what to do and went to the toilets, shook with anger and wept silently.
Her mind cleared, though, and then she was sure of exactly what he had done.
The bastard had put his hand on her bottom, treated her like a piece of meat, and ignored her dignity as a person. No respect.
This had gone on too long.
She dried her tears, gathered her courage as best she could and went straight to Seamus. She told him that what he had done was completely unacceptable, that she felt humiliated and demanded an apology.
Seamus’s face reddens and his mouth tightens and a little tic develops on the left side of his mouth. He denies it completely, tells her she is nothing but a troublemaker, and nobody will believe such a stupid allegation.
Ana felt faint, confused, could not think straight.
She goes into the little store at the back of the shop that passes for a staff room, takes her bag out of her locker, puts on her coat and heads for the bus stop to go home.
Ana sits in her kitchen for 90 minutes nursing a cup of coffee.
She debates with herself about what to do: should she leave or make a formal complaint or just forget about it and tough it out or start looking for another job?
She pulls out the staff handbook from underneath her bed and discovers how she is to make a complaint.
Two days later she receives a message from the owner of the business who tells her she has appointed an external HR person to carry out an investigation.
An investigation was quickly carried out and Ana made a statement about what happened and what had happened previously. She told the investigator that it was common knowledge what Seamus was like-all he had to do was check with the other girls.
The investigator called in the other 2 girls and asked them if they ever had any difficulty with Seamus.
They told of the long running difficulties that they had experienced with him: inappropriate remarks, comments about their clothes, how they looked, their make up, told them jokes that always involved some sexual comment, and so forth.
Ana reads the letter again for the second time and she can’t believe it. She has received it by registered post and it tells her the outcome of her complaint is that the investigator from the HR company does not uphold her complaint.
The reasons given are a “conflict of evidence” and one person’s word against another’s and the absence of any witness to the alleged incident.
The letter is worded really nice and professional and it tells her the employer values her greatly and hopes she will be able to come back to work soon and are sure that her relationship with Seamus can be rebuilt “going forward”.
Ana reads it for the third time. She cannot believe it. She’s thinks she is going to be physically sick. Really throw up.
She’s not sure what to do, or what she can do.
But she knows one thing: she cannot go back into that workplace.
Ana sits in my office now. She plays with her ring, a big blue stone of a thing. She is teary and weepy and I get a small box of tissues.
She is determined about one thing: she will not let this go. She wants to take it further and tell her story. She hasn’t come from a difficult upbringing in Zagreb to Ireland to have some deviant treat her like a piece of fine meat.
We submitted her claim to the WRC without delay. It was an Employment Equality act 1998 claim that she had suffered discrimination in the workplace by reason of her gender and had been the victim of sexual harassment.
references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
Now, it is 8 months later and we have received the decision of the WRC adjudicator. The WRC have found that Ana’s complaint was “well founded” and she has been awarded €27,000 in compensation.
It is open to the employer to appeal this decision to the Labour Court.
But Ana doesn’t care; she has told her story to an independent adjudicator and has been believed. Not alone that but the wrong that was done to her in the workplace has been recognised by an award of compensation. It wasn’t just a trivial, inconsequential, technical wrong.
It was a serious attack on her self respect and dignity.
The money is not the important thing to Ana, but it will give her time to get on her feet again, get another job, maybe send some home to her family outside Zagreb.
(Please note “Ana” and “Seamus” are not the real names of the parties involved in this case and some facts have been changed slightly to prevent identification).
Could you afford an employment law award of €46,000 against you? Let’s face it you would be hard pressed to just take it on the chin and chalk it down to experience.
But that is what you could be facing if you are at the losing end of a WRC decision as occurred recently in a case involving a claim founded on discrimination.
An office manager in a software firm was awarded €46,000 in compensation by the WRC for her discriminatory dismissal.
The employee who brought the claim had an incurable degenerative disease (fibromyalgia) and was dismissed whilst on sick leave. This disease caused her muscle pain, fatigue, sleep and memory problems.
The €46,000 award comprised 2 parts:
€23,000 in respect of the actual discriminatory dismissal and
€23,000 for the failure of the employer to make reasonable accommodation in allowing the employee to continue in her job.
The award took into account the way the employer dismissed the employee: by telephone.
The background to the case is the employee was employed since 2015 and went on certified sick leave in May 2017; in November 2017 she was dismissed by conference call. Whilst she was out sick her occupational therapist made a number of recommendations as to how she could be accommodated in the workplace including:
Working from home
More rest breaks
Flexible working rosters
A temporary reduction in working hours.
The employee was then involved in a car accident in August 2017 and she was not expected to return to work until January 2018 as she required a spinal implant procedure.
However, in November 2017 she was told by phone that she was being given one month’s notice of dismissal but would be paid in lieu of notice and her termination was, therefore, with immediate effect. The employer mentioned incapacity and “the problems her absenteeism were causing.”
In her evidence at the WRC the employee told that she was not given any warning of her potential termination nor was she given the chance to appeal the decision. The employee was on certified sick leave at the time and was taken aback at the decision which had a significant impact on her from a personal and financial perspective.
She also spoke of the pride she took in being able to work despite her difficulties and she was anxious to show that sufferers from such diseases/disabilities can do things and take part in the workplace.
The employer denied it failed to offer reasonable accommodation and stated it could not hold her position open indefinitely.
Warning for employers
This case is further evidence, if any were needed, that employers need to be very careful about how they deal with their employees, especially when it comes to terminating employment on the grounds of incapacity.
Employers are perfectly entitled to terminate an employee’s job on the grounds of incapacity but only after looking carefully at the options, obtaining updated medical evidence, warning the employee his/her job is at risk of termination, and giving them the opportunity to appeal the decision.
Otherwise, the employer runs the risk of a discrimination-based claim either on the grounds of discriminatory dismissal or straightforward discrimination or failure to make reasonable accommodation for the employee’s continued employment.
to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.
(b) In this subsection —
‘ Act of 1977 ’ means the Unfair Dismissals Act 1977 ;
‘ dismissal ’ has the same meaning as it has in the Act of 1977;
‘ relevant date ’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation. ]
This means that the discrimination based claim under the Employment Equality act, 1988 will be deemed to be withdrawn unless, 41 days after notification from the WRC, you withdraw the claim under the Unfair Dismissals act, 1977.
Then, if you withdraw the claim under the Unfair Dismissals Act, 1977 your discrimination based claim under the Equality Act 1988 will go ahead.
If you don’t respond to the letter you receive from the WRC your claim under the Equality Act, 1988 will be deemed to be withdrawn and your unfair dismissal claim will be dealt with.
101A. — Where the conduct of an employer constitutes both a contravention of Part III or IV and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003 , relief may not be granted to the employee concerned in respect of the conduct under both this Act and either of the said Acts.
If you bring claims to the Workplace Relations Commission sometimes your case will be straightforward, but sometimes you can easily fall into a technical or legal roadblock that may give you a nasty surprise.
You should always seek legal advice before you bring any claim as it is vital that you choose the correct cause of action. This cannot be remedied later on and I have seen some very silly, basic mistakes made by workers who ultimately make some simple but fatal mistakes and end up with nothing but heartache and disappointment.