This case is also a timely reminder to employers of the very broad definition of ‘disability’ under the Employment Equality Act 1998 (as amended), which includes conditions such as alcoholism, depression and anorexia, to name a few. 

In this case, the complainant had been employed as a solicitor by the respondent since 2001 and suffered from epilepsy, of which her employer was aware. She sought to work from home on a number of occasions in 2015, 2016 and finally in 2017.

In her submissions, the complainant relied on the case of Marie Daly v Nano Nagle School, whereby it was stated: “The point is a simple one: the statutory obligation is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation…” 

The Court of Appeal also confirmed the decision in Humphries v Westwood Fitness Club, noting: “The general principles set out in Humphries v Westwood Fitness Clubrequire an employer to make a bona fideand informed decision regarding a disabled employee’s capabilities before concluding that he or she is unable to perform the duties of their employment … At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive.”

Home and away

The complainant, in essence, argued that the respondent had failed to engage in any meaningful way with her as to how the proposed arrangement of working from home might work. This was notwithstanding that the complainant had agreed to attend at whatever location the essentials of her role required her to attend on her ‘working-from-home’ day.

The respondent had initially written to the complainant in December 2016, refusing to facilitate her request on the basis that a medical report they had received noted that working from home would only make a “minimal reduction” to her stress, and having regard to the nature of her front-line duties as a solicitor.

It noted that the complainant’s role involved face-to-face meetings, attending court, and that her role was not compatible with working from home.

Reduce stress levels

The independent medical practitioner engaged noted that working from home was a way for the complainant to reduce her stress levels, which she considered to be a trigger for epilepsy.

It was the respondent’s case that it met the test set out in A Health and Fitness Club v A Worker and, in particular, “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”. 

It was noted that the respondent obtained independent medical advice to the effect that the reasonable accommodation would only “minimise” the complainant’s stress and its decision to refuse the request was based on this.

In his decision, the adjudicator referred to section 16(3) of the Employment Equality Acts 1998(as amended) and noted the circumstances in which an employer must provide reasonable accommodation to an employee.

These are to enable a person with a disability to:

• Have access to employment, 
• Participate or advance in employment, or
• Undergo training. 

He noted that the complainant’s neurologist (who did not give evidence, but whose views were quoted in the respondent’s submission) had stated that if the complainant’s stress and fatigue could be reduced within the limits allowed by her work, then they should be.

The independent medical practitioner had, however, noted that any reduction would be “minimal.” 

The adjudicator remarked that there were two strands to the respondent’s position: the first outlined above, and the second relating to whether the complainant was able to discharge her duties working from home.

The respondent had previously stated in an email on 1 January 2017 that the complainant working from home would be “incompatible with her role and functions”; however, the complainant had previously stated that she had “huge autonomy” in her role and the delivery of tasks. 

The complainant had also previously stated that she was willing to be entirely flexible and respond to business needs as required and that, as a lot of her work was preparatory in nature, she felt she could easily perform these at home.

The respondent was unable to furnish any particular evidence refuting this.

A country practice

The adjudicator noted that the issue of the disability was not in dispute and “the only issue arising from the medical opinion is whether the accommodation sought would have an impact on reducing stress on the complainant and thereby reducing the risk of another attack with possible life-threatening consequences”. 

He further stated that “reasonable accommodation is a positive, facilitative provision to enable a task to be more easily accomplished”. It was also noted that failure to engage with the complainant was especially significant, given that the issue was initially decided long before medical opinion came into play. He stated that there had been no attempt to assess, with the complainant, the precise outworking of the ‘work-from-home’ option, and this unduly influenced the decision, even after the independent assessment.

Objection

The adjudicator commented that the objection to work-from-home seemed to be a “matter of policy on the part of the respondent” and a “fairly entrenched one”. 

He referred to three pieces of medical evidence and stated: “The question is whether a ‘minimal’ contribution might make the difference in avoiding the sort of potentially catastrophic outcome which the complainant had previously experienced, and it would appear that the respondent either did not consider this or does not regard this as a significant factor.”

He concluded by stating that, “in the very specific circumstances of this case, I consider any, even a minimal, contribution to avoiding the risk represented by a grand malseizure as a valid accommodation of the complainant’s requirements to fulfil the entire gamut of her role.

“The failure of the respondent initially to properly consider the application and then, following the expression of the views of the independent medical practitioner, to rigorously evaluate the possible impact on the complainant, is a failure to provide her with reasonable accommodation.

“In my view, making a minimal impact on the possibility of avoiding a life-threatening event is, to put it very mildly, a reasonable accommodation. There should be a zero-risk approach in such a situation.” 

Awarded €30,000

The complainant was awarded €30,000 for breach of her rights under the Employment Equality Act 1998(as amended).

Employers seeking assistance complying with reasonable accommodation requests from employees with disabilities should contact an employment law solicitor.