Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors explains where his office has had input on current and upcoming Irish legislation.

In Case ADJ557, the employee in this case contended that reasonable accommodation was not provided to her where she was not put on day shift work only. It was common case between the parties that it was accepted that the complainant suffered from depression and that the depression was a disability within the meaning of the Act and that working night shifts at times was causing difficulties.

The Adjudication Officer helpfully pointed out that where the employer repeatedly sent the employee to their occupational health specialist and meeting with the complainant, the respondent fully met their obligations as set out by the Labour Court in A Health and Fitness Club v A Worker EED037.

The Adjudication Officer held that the respondent company had learned both from their own specialists and from the complainant’s GP that the complainant needed to be accommodated with day only shifts for a period of time. However, this did not happen.

The Adjudication Officer held that the employer treated this as a normal transfer request in line with its union agreement rather than a statutory obligation. It was held that it was wrong for the respondent company to treat a medically identified need to be accommodated with day time work for a time as being on a par with its normal transfer policy and therefore the provisions of sections 16 were not complied with.

The Adjudication Officer in this case invited additional observations in regards to the case of Reilly v United Parcel Services DEC/E/2013/077 as regards whether the Respondent could contend that such a measure would have imposed a disproportionate burden on it. The employer argued that the agreement with the union and the relevant Labour Court recommendation under the Industrial Relations Act were cited as reason why the agreement had precedence over the complainant’s rights.

The Adjudication Officer helpfully dealt with the Court of Appeal decision in Mullaly and Others v The Labour Court and Waterford County Council 2016 IECA291 where Hogan J unequivocally stated in his conclusions that:

“All of this is to say that if the decision of the Labour Court was not simply a recommendation, but had binding legal consequences then of course the result of this case so far as the jurisdictional issue of justiciability is concerned would be quite different.”

“As this, is however, not the case, I entirely agree with the conclusion of Noonan J that the recommendation of the Labour Court pursuant to section 20 (1) of the 1969 Act “has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates”. Nor can it be said that “such a recommendation creates any form of Res Judicata or any other form of binding resolution”.

The Adjudication Officer was satisfied that the agreement in question did not take precedence over the respondent’s statutory obligations towards the employee. The Adjudication Officer pointed out that the respondent has a worldwide turnover of between $3-4 billion and that the pay of the complainant on day shifts for the time she was out sick after her sick pay ran out would have been around €10,000.

The Adjudication Officer held that, while the replacement on the swing shift could have earned a shift allowance and training costs might also have improved, the Adjudication Officer was unable to accept that the burden on the respondent would have been disproportionate.

The Adjudication Officer awarded a sum of €20,000 being equivalent to just under 9 months’ pay. As this was compensation for discrimination it was exempt under section 192A of the Taxes Consolidation Act which the Adjudication Officer properly set out in the decision.

This is a very useful decision for colleagues to read on the issue of reasonable accommodation.