- Posted by Olivia Hande
- On August 22, 2016
In part 3, Bernadette Treanor discusses a case involving a failure to provide reasonable accommodation. In this case, the award is listed as the salary lost in the intervening period as compensation.
DEC-E2016-088 – An Employee (RK) v A Health Services Employer
Issues: disability, failure to provide reasonable accommodation, reinstatement and the difference in pay in the relevant period as compensation
The complainant was employed as a grade V and on a panel awaiting appointment to a grade VII. She applied for a local grade VII post and was successfully appointed in an acting capacity. She experienced considerable difficulties due to her disability particularly due to the dispersed holding of relevant files and difficulties reaching the photocopier combined with the substantial amount of photocopying required for the post. The employer believed it had provided appropriate accommodation in a ground floor office, adapting a desk etc. Considerable correspondence appears to have been presented and the Equality Officer found that the respondent had adopted “a lethargic reaction in response to her requests to have the office routines of the ANO role examined either from a business point of view of a disability perspective”.
The complainant was returned to her original grade V. The Equality Officer refers to the Unfair Dismissals Act saying that the letter of 11 June 2014 should have “been set aside as an almost “Constructive Dismissal resignation letter”. A possible interpretation of this is that the complainant was saying she could not continue in the overall circumstances. There followed a meeting that was “in effect to deliver what appeared to be an ultimatum in relation to transferring back to the Grade V position”. It appears that the Equality Officer has found that the complainant was given an ultimatum to return to her former role. However, no further consideration of this as direct discrimination on the disability ground is included and indeed, although this was an allegation no finding is made in this regard in the Decision.
The complainant’s disability being accepted by both parties, the Equality Officer examined reasonable accommodation and disproportionate burden. He found that the respondent failed to provide reasonable accommodation and that no issue of disproportionate burden arose. The complainant’s claim was upheld. The Equality Officer directed that the complainant be reinstated to the grade VII role in the same region and that if no permanent position existed it should be in an acting capacity with the acting allowance paid immediately. He directed that an assessment of the complainant’s needs be undertaken and findings agreed with the complainant.
Reinstatement, usually relevant to dismissal claims, is normally taken to mean that the person is put into the position as if the discrimination had not happened. In this case, that would mean that the complainant would be paid as a grade VII from the date she was returned to her grade V, October/November 2014. In addition, the Equality Officer directed the rather unusual remedy of the difference in pay from November 20124 to 1 September 2016 as a tax-free compensation lump sum thereby, depending on interpretation, effectively doubling the amount to be paid.