Reasonable accommodation for staff with disabilities - how far must an employer go?
The Irish Human Rights and Equality Commission (“IHREC”) recently published a draft Code of Practice on the Nature and Extent of an Employer’s Obligations to Provide Reasonable Accommodation to Employees with Disabilities (the “Code”). IHREC’s remit as an independent statutory body is to protect and promote human rights and equality.
The draft Code aims to give guidance to employers, employees and their representatives on the law around reasonable accommodation and its application in the workplace, in order to eliminate discrimination against employees with disabilities, while also promoting equality of opportunity in employment.
IHREC has launched a consultation process, closing at the end of July 2022, in order to hear the views of those individuals and groups, including employers, who may be impacted by the Code.
The Draft Code of Practice
The Code is stated to apply to all employments covered by Employment Equality Acts 1998 to 2015, with some very limited exceptions.
The Code sets out that the Employment Equality Acts fall to be interpreted in light of international law, namely the EU Framework Directive and the United Nations Convention on the Rights of Persons with Disabilities. In addition to medical matters, these international frameworks introduce further societal factors to be considered when assessing disability in the workplace. As such, the Code indicates that interpreting disability under the Employment Equality Acts would require the presence of a disability alongside an identification of any barriers hindering full participation in working life.
Section 16 of the Employment Equality Acts sets out the nature and extent of an employer’s obligations in certain cases where an employee has a disability. The Code sets out that, where needed in a particular case, an employer is legally obliged to provide reasonable accommodation to an employee once they are aware, or are on notice of, an employee’s disability, unless it would give rise to a disproportionate burden for the employer. Equally an employer should increase awareness of the duty to provide reasonable accommodation among employees and foster a work environment where early disclosure of disabilities is encouraged. The Code states also that an employer should consider rolling out a programme of disability awareness training to employees.
The Code outlines that a full assessment of the needs of the individual employee must be undertaken and recommends that employers appoint a disability liaison officer (or alternatively ensure sufficient HR expertise is available) and draft a policy covering procedures around disability in the workplace and reasonable accommodation.
Employers are also expected to have regard to the principles of “universal design” when considering reasonable accommodation measures: “the design and composition of an environment so that it can be accessed, understood and used to the greatest extent possible by all people regardless of their age, size ability or disability.” (taken from www.universaldesign.ie). The Centre for Excellence in Universal Design was established on foot of the Disability Act 2005. This introduces a new concept into the consideration of reasonable accommodation measures and is not something which is considered under the Employment Equality acts.
Codes of Practice typically serve as a restatement of particular statutory obligations in a clear and accessible manner. The draft Code here sets out that it does not “impose any legal obligations in itself, nor is it an authoritative statement of the law — that can only be provided by the Workplace Relations Commission, the Labour Court and the courts.” Nonetheless, Codes of Practice are admissible before the Workplace Relations Commission, Labour Court etc. and the reality is that employers may be expected to abide by any provisions contained within the Code.
The Employment Equality Acts already place distinct obligations on employers with regard to disability and reasonable accommodation in the employment context. The introduction of universal design as a further factor to be taken into account when considering reasonable accommodation measures is a concern given that it relates to environments being used “to the greatest extent possible” by all people, regardless of disability. It is unclear whether this requirement would still be subject to the disproportionate burden limitation on reasonable accommodation imposed by the Employment Equality Acts.
Similarly, the Code states that it is advisable for an employer to appoint a disability liaison officer or ensure that HR staff have sufficient capacity and expertise in this area. The aim here is that such an individual would have an “active role in consulting with employees who have been afforded reasonable accommodation to assess how it is working in practice and whether or not any further adaptations may be needed.” The definition of disability under the Employment Equality Acts, as noted in the Code, is entirely medical in nature. In practice, assessments of disability and reasonable accommodation in the workplace are carried out by suitably qualified medical professionals. In that context, having a non-medical person making decisions on the scope of reasonable accommodation measures is questionable, and might expose an employer to legal challenge under the Employment Equality Acts. It is worth noting also that there is limited reference overall in the draft Code to the role played by company doctors and occupational health professionals in assessing disability and reasonable accommodation.
Ibec is in the process of preparing a substantive response as part of the consultation process to bring attention to these matters and will continue to monitor the progress of the Code and keep members appraised of same.