Employment: Successful claim of discrimination on the grounds of disability by employer – failure to provide reasonable accommodation - Case Study 2016

By nclcadmin, Friday, 1st April 2016 | 0 comments
Filed under: Employment, Case Studies 2016.

Background

The client attended the Community Law and Mediation Northside free legal advice clinic in relation to his compulsory retirement from his employment on health grounds. He was no longer able to perform his driving duties as a driver for a large transport company; because of an injury he suffered which resulted in health problems. We took a claim on his behalf to the Workplace Relation Commission, on the grounds that he was discriminated against by his employer because they did not help him to return to work in alternative employment. The client told his employer that he was willing to do another job within the company but he was told there was nothing available. We argued on his behalf that the company could not show that they did everything they reasonably could to try and accommodate him.

CLM Northside’s Input

The concern was that the client’s employers were not engaging in their duty of reasonable accommodation. This requires employers to take all reasonable steps to place disabled employees on an even footing in relation to access and participation in the workplace. CLM engaged in correspondence with the employer and issued a complaint form to the Workplace Relations Commission (WRC), outlining the allegations that the client was being discriminated against on the basis of his disability. We represented the client before the WRC, with the help of Ellen O’Callaghan BL. The Adjudication Officer found against our client and we appealed to the Labour Court on his behalf.

Impact

Before the Labour Court, we argued that the WRC’s decision should be overturned and that the employer could not produce any evidence that they had tried to find alternative employment for the client. The Labour Court agreed and found in favour of our client. The Court found that our client was not consulted in any way regarding his disability and his capacity, the person who made the decision did not personally engage with our client and the procedure was fundamentally flawed, stating that “it excludes the Complainant from any involvement in the assessment of his capacity to undertake his duties, it deprives the Complainant of an opportunity to influence either the medical and or management decision that affects his livelihood, it fails to separate the role of the CMO from that of the employment decision maker and it fails to notify the Complainant of the grave threat to his employment and alert him to the need to be properly advised and represented before a decision to end his employment is taken.”

The client was awarded compensation and through pursuing the matter, strengthened and clarified the rights of all people with disabilities in the workplace to transparent and consultative procedures when the employer seeks to terminate employment on health grounds.

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