A case for reasonable accommodation continues
Under equality law, if you can, you must make reasonable accommodations to allow a person with a disability to do their job. This does not mean you must hire, keep on or promote someone who doesn’t have the capacity to fulfil a role. But you must explore what you could do to give them an equal opportunity.
So what is a reasonable accommodation? At its simplest, it may be as straightforward as providing a modified chair. But it could get much more complicated than that…
A teaching assistant was dismissed after becoming paralysed from the waist down in a car accident. It had been deemed that she could no longer perform 7 out of the 16 tasks of her role. An alternative role was defined, but the school was told there was no funding available for it. And so her employment was terminated.
She took them to court for breaching the Employment Equality Acts, 1998 – 2015 by not making reasonable accommodations.
So far, the case has been to the Equality Tribunal which found in favour of the school; then the Labour Court which awarded the teaching assistant €40,000 in compensation for discrimination; the High Court which also found that discrimination occurred; the Court of Appeal, which overturned the High Court judgement; and the Supreme Court which overturned the Court of Appeal ruling. The Supreme Court has ordered that the Labour Court rehear the case, taking into account their findings.
So we still have no definitive answer.
The issues that have been discussed have ranged from the communication process with the employee, to where the equality protections end – which is before an employer has to create a brand-new job. And many other points of contention in between.
It is an extreme example, but one which shows just how complicated this issue can be. If you are faced with assessing reasonable accommodations, talk to us first. We’ll help you work out what you can do to keep your employee or dismiss them safely. And if you follow our advice from the outset, our retained advice is backed by tribunal indemnity insurance.
The courts have had a say on workers’ rights in the gig economy, and governments are legislating on it – including here in Ireland. And now a company is making a proactive suggestion.
Deliveroo, with a new general manager at the helm in Ireland, have called for a Charter for Secure and Flexible Work. In their submission, which they have filed with the Department of Employment Affairs and Social Protection, they want the freedom to offer their self-employed contractors benefits without jeopardising their self-employed status.
They already offer road insurance. The kind of thing they are talking about now is accrued sick pay. And the problem with the status quo is that if they offer it, it could spark legal challenges to say that the individuals are employed. This would bring more costs to the company and less freedom to the people working for them.
They argue that their self-employed contractors value, above all else, the flexibility of working on the Deliveroo platform – 86% of them at any rate, according to a survey they conducted.
The charter idea, borrowed from France, goes some way to address one of the central concerns about the gig economy – that of workers’ rights being eroded, particularly vulnerable workers’. There is, though, still the question of lost tax revenue.
In the meantime, if you use gig economy workers such as freelancers, people on zero-hour contracts or self-employed contractors, we’d advise reviewing your reasons for doing so to ensure they are genuine. If you want to discuss it with an expert, please get in touch.
Get ready for Brexit
(At the time of print) Boris Johnson is assuring the world that the UK will be leaving the EU on 31 October. Halloween, of course, and leaving aside whether you think Brexit will be a trick or treat, there may well be steps you need to take to be prepared.
The government has published an online guide called “Getting your business ready for Brexit”. This covers a whole range of business operations, and naturally, some relate to HR. These include travel visas, professional qualifications and residency requirements. Think also about data and GDPR. The UK will become a third country for data protection purposes. In employment terms, this may be relevant if you use a UK-based payroll provider.
It’s helpful to be pointed in the right direction, but there’s still the hard graft to do. If you need extra support with your Brexit HR, then get in touch.
Claws and effect
There is no statutory bereavement leave for the loss of a close human relative yet, let alone a pet. But typically, employers offer three to five days leave for the loss of a family member, at their discretion. However, bereavement affects everyone differently, and some people may be overwhelmingly affected by the loss of a pet.
You may notice unexpected absence, a drop in performance or even temporarily not being able to perform certain roles.
With no law to steer you, your response to this comes down to your discretion. Showing compassion often pays dividends in the long run. But be careful! You should apply a strong rationale and consistency. For instance you may feel some time off (whether paid or unpaid) for the loss of a cat or dog is appropriate. But draw the line at the goldfish. And there’ll be an expectation that what’s offered to one employee will be provided for another in similar circumstances.
If you want a whole new take on receiving bad news, consider Josh Thompson’s approach. When Josh, a copywriter from New Zealand, received an email from his employer asking him to meet to discuss his role, he guessed the writing was on the wall. In accordance with New Zealand law, he was encouraged to bring a support person to the HR meeting. Instead of a family member or union rep, he hired a clown to ease the tension. His employers saw the funny side but did have to ask him to quieten down several times while he was making balloon animals. In Josh’s words “Boy, oh boy, are clowns noisy”!
Employees at protests
Climate change and political unrest are giving rise to increasing protests, globally and here in Ireland.
So what do you do if employees skip work to join a mass protest? Even those who have a previously unblemished unauthorised absence record? A global day of protest is planned on Friday 20 September, with a well-publicised climate strike taking place here in Ireland. It is unlikely to be the last.
Employees can’t expect to skip off work to protest and not face repercussions. You need to attempt to contact them if they go AWOL and document everything. There may be action you take before it comes to this, though. Could you suggest they protest on an unpaid lunch break? Or if the issue is climate change and your company ethos plays a part in addressing this, actively communicate it to staff so they feel they are already contributing.
If, however, they are protesting against you, or trade unions are involved, that’s a different story and needs immediate attention. You should call us as soon as possible.