Current Issues Arising in Equality Law

29-05-2014


In this client briefing, we focus on two “hot topics” in the world of employment equality law, namely employment medicals and discrimination and flexible working requests.

Employment Medicals and Discrimination

Introduction

Many employers offer prospective employees a position subject to “satisfactory medical”. Where the medical is not “satisfactory” an employer is faced with a difficult decision in respect of the candidate’s future. Where a candidate is not offered a position in reliance on a medical, this could ultimately be deemed to amount to discrimination on the grounds of disability.

The Equality Tribunal and Labour Court have recently considered the appropriateness of pre-employment medicals in the employment arena as outlined below. It should be noted that pre-employment medicals are often very important in the broader employment context, particularly where an employer proposes to engage an employee in a safety critical role. They also provide insight to enable an employer design safe systems of work and/or to assist in identifying risks as they relate to a particular employee. These medicals might also be of assistance in ultimately defending personal injury proceedings i.e. where an employee has a prior medical history of depression and anxiety, disclosure of this information at the outset of the employment relationship would be very relevant to the defence of a subsequent claim that an employee has been injured due to work related stress.

The Law

Section 8 of the Employment Equality Acts 1998 to 2012 (the “Employment Equality Acts”) provides that an employer shall not discriminate against an employee in relation to access to employment. Where a recruitment process is challenged on the basis of it being discriminatory (on any ground) it is well established that the Equality Tribunal will not look behind an employer’s decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

Generally speaking, when a prospective employee is requested to attend a pre-employment medical an offer of employment has been made. The challenge will therefore not be on recruitment per se but on the decision to withdraw the offer in reliance on an unsatisfactory medical. Disability is very broadly interpreted by the Equality Tribunal and, as such, it is highly likely that any decision to withdraw an offer of employment on medical grounds will give rise to a claim for disability discrimination. Section 16 of the Employment Equality Acts places an obligation on employers to provide reasonable accommodation to disabled employees to facilitate the performance of their duties. The concept of reasonable accommodation allows for a disabled person to be treated in a more favourable manner than a person that does not suffer from a disability. It recognises that special assistance is required to allow persons with disabilities to have access to employment and compete within the workplace.

Section 16 of the Employment Equality Acts can provide a complete defence to a claim for discrimination on the disability ground if it can be shown that an employer, in the context of a pre-employment medical, formed a bona fide belief that the employee or prospective employee was not fully capable of performing the duties for which he or she has been employed or it is proposed that he or she will be employed. It is clear that the obligation to provide reasonable accommodation can only be satisfied where some sort of assessment has been undertaken to determine whether reasonable accommodation can be provided at all.

Case Law

In Ms X v An Electronic Component Company [DEC-E2006-042], the Equality Tribunal found that the use of pre-employment medicals or questionnaires is not unlawful per se. The Equality Tribunal in this case warned that employers need to exercise caution when using information obtained in such assessments so as not to fall foul of employment equality legislation and held that the reasonable accommodation duty equally applies in the case of recently recruited employees. In this case, the employee was dismissed following three days of employment when, during a manual handling course, the employee disclosed that she had difficulty sitting up straight.

The Equality Officer found that, by taking the word of the manual handling trainer over the employee in the absence of any medical opinion, the employer had imputed a disability to the employee. The Equality Officer found that when faced with conflicting information about a “back problem”, the employer acted in an impetuous manner and the Equality Officer was critical of the employer’s failure to seek a medical opinion. The employer was found to have discriminated on the grounds of disability and the employee was awarded compensation of €15,000.

In An Applicant v A County Council [DEC-2010-054], the applicant claimed that she was discriminated against by a County Council on the grounds of disability in relation to access to employment.

Following a selection process she was placed eighth on a panel for a permanent clerical officer position. She was then offered a 22-week temporary maternity cover subject to a satisfactory medical report. The medical report returned confirmed that the applicant had a “…chronic back problem. Standing for long periods or lifting would cause her difficulties. I would suggest a six month trial.” The final part of the medical report asked: “Are there any circumstances connected with the health of the candidate which, in your opinion tend to disqualify him/her from performing the duties efficiently and regularly?” to which the doctor replied “I suspect there may be”. On the basis of this medical report, the County Council withdrew the offer of temporary employment and advised the applicant it had done so based on the medical evidence received.

The applicant remained on the panel for a permanent position. In light of the medical report received, the County Council sent the applicant to an occupational health consultant for a more detailed assessment. The resulting medical report stated:

In my opinion currently (the applicant) is medically fit for this work. I would advise the Council of course that the workstation would need to conform to appropriate guidelines and she would need to mobilise on a regular basis, I would estimate some degree of mobilisation every 20 minutes would be reasonable. With respect to her abilities to provide regular and effective service I have to state with reservation the prognosis is guarded … On the balance of probability I suspect that (the applicant) is likely in the future to have periods of absence from work as a consequence of an exacerbation of her back pain.”

The County Council submitted that there would have been no problem in providing reasonable accommodation in relation to the workstation and mobilisation. However, it was concerned with the applicant’s ability to carry out her duties on an ongoing basis. The Council informed the applicant that, based on the specialist medical report, it would not be proceeding to appoint her to a permanent post. The applicant contended that the decisions made by the Council to withdraw the offers of employment that had been made to her were discriminatory on the grounds of her disability.

The Equality Officer concluded that the decision to withdraw the offer of the temporary position was based on an incorrect assessment of the medical evidence received. Despite being medically assessed as capable for the temporary position the offer was withdrawn; this amounted to discrimination arising from her disability.

The Equality Officer accepted that the second medical report raised concerns for the Council about the applicant’s condition in the future but given the uncertainty of the language in the report, the Equality Officer did not accept that the Council had sufficient information to withdraw the offer of employment based on the contents of the report alone. The Equality Officer stated that the Council should have consulted with the applicant and referred her to a specialist.

The Equality Officer awarded the applicant €12,000 for the discriminatory treatment suffered, and ordered that the applicant be considered for the next available clerical officer position.

In A Complainant v A Worker [2005] E.L.R 159, it was established by the Equality Tribunal that the obligation to provide reasonable accommodation also applies to prospective employees.

The prospective employee in this case was called to interview at one day’s notice and indicated that he would attend. The employee had a hearing difficulty and was unable to get a sign language interpreter at such short notice. The employee suggested that the interview take place with the aid of a computer but this was rejected by the prospective employer as the interviewer was allegedly not computer literate. The employer insisted that the interview could only take place on this particular day. The interview never took place. The prospective employee brought a claim of disability discrimination against the prospective employer. In its defence, the prospective employer asserted that the prospective employee had been treated no differently than the other interviewees, in that they were all required to attend on that particular day.

The Equality Officer held that had a reasonable deferment of the interview been granted, the prospective employee could have attended. In the circumstances, the Equality Officer was satisfied that the refusal to defer the interview constituted less favourable treatment and a prima facie case of discrimination on the disability ground was made out. The Equality Officer also examined whether granting the prospective employee’s request to conduct the interview with the aid of a computer represented a disproportionate burden on the prospective employer, the Equality Officer ruled that this did not represent a disproportionate burden as the prospective employer could have conducted the interview with the aid of basic technology such as Microsoft Word and by ensuring the availability of a person with typing abilities.

The prospective employee was awarded compensation of €8,000 for the effects of the discrimination.

Conclusion

The practice of requiring prospective employees or new hires to attend for a medical assessment is well established. Indeed, there are very good reasons for this practice. That said, where the outcome of such an assessment gives rise to a cause for concern, an employer or perspective employer would be well advised not to take action prematurely and withdraw the offer of employment or terminate the employee’s employment. Instead the employer should pay due regard to its obligations under the Employment Equality Acts and consider whether reasonable accommodations can be made available to the employee or perspective employee. If it is concluded that they cannot, and the employer has medical evidence in support of this conclusion, the employer is in far better position to inform the employee or prospective employee of the bad news and indeed, defend any subsequent discrimination litigation that might ensue.

Flexible Working Requests – Are you handling them correctly?

It is an unfortunate but accepted fact of life that it can be difficult for working parents to juggle successful careers and family responsibilities. As women still primarily provide primary care for children, it is frequently women who seek part-time or family-friendly work arrangements from their employer in order to accommodate their family commitments. Employees with caring responsibilities are understandably not in a position to adapt their working conditions and provide the flexibility at short notice that employees without such commitments are. However, employers that operate inflexible working environments need to be alive to the discrimination issues that can arise from such inflexibility.

What rights do employees currently have to flexible working arrangements?

Employees do not currently have a statutory entitlement to flexible working arrangements. By flexible working arrangements, we mean a right to part time work, job sharing and/or flexible attendance. Therefore, in the absence of a published policy on flexible working arrangements, many employees’ ability to avail of flexible working arrangements depends on the whim of their employer. What many employers do not seem to realise is that, although they are not obliged to provide flexible working arrangements, they are obliged to provide or refuse them in a non-discriminatory manner.

UK Position

In the UK employees with children under age 17, or who are carers of an adult, have a statutory right to request flexible working arrangements provided they have over 26 weeks continuous service at the date of their request. This right to request flexible working arrangements is soon to be extended to all employees with 26 weeks continuous service, regardless of whether they have children or caring responsibilities. Furthermore, the formal statutory framework for handling requests is also to be removed and replaced with a more flexible requirement that employers instead consider requests in a “reasonable” manner and time frame.

The Indirect Discrimination Risk

There is huge scope for indirect discrimination to arise in the handling of flexible working requests. Indirect discrimination takes place when an apparently neutral provision, criterion or practice puts persons of a particular protected class at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer. In contrast to direct discrimination, indirect discrimination is permissible where the provision, criterion or practice in question is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Many employers are surprised to learn that refusing to accommodate a woman returning from maternity leave who wishes to work on a part-time basis could constitute indirect discrimination on the grounds of family status and gender. While an employee in those circumstances has no legal right to reduced working hours or to a job share arrangement, the Equality Tribunal and Labour Court have tended to require employers who have considered and refused such requests to demonstrate that they have acted reasonably in doing so.

In order to defend claims of indirect discrimination, employers must ensure they can “objectively justify” refusals by:

  • establishing a legitimate business reason for the refusal (for example, clients demanding that staff be available at certain times); and
  • demonstrating the refusal is proportionate in light of this business reason (for example, it is not reasonably feasible to meet this demand in another way, such as by way of a job share).

Case law

In Tesco v Walsh [DEE062], an employee sought part-time work on her return from maternity leave just before the summer. This request was refused by her employer over the summer months due to staff shortages and summer holidays. She was however afforded every Friday or Saturday off during the summer and was eventually transitioned to part-time work some months after she had returned to work. The employee claimed that she had been discriminated against on the grounds of gender in not being permitted to return to part-time employment on her return from maternity leave. The Labour Court held that her employer had acted reasonably in considering her request having regard to its business needs and found no evidence of discrimination on the grounds of gender.

In Tesco v Swift [EDA0514] an employee sought part-time working arrangements on her return from maternity leave. In particular she sought to work a 15 hour week over Monday, Tuesday and Wednesday. Her employer refused to accommodate her request but did offer alternative working hours, namely 18 hours over the same three days. The employee was nonetheless disgruntled and brought a claim of gender discrimination against her employer. The Labour Court held that an employer is obliged to give reasonable consideration to flexible working requests but was satisfied that in this case, the employer had discharged this burden. The revised hours offered by the employer were in line with an agreement with the trade union of which the employee was a member, the hours of work were on the same days of the week she had requested and her employer had demonstrated an established practice of accommodating female employees’ flexible working requests in the past.

What about requiring employees to work on a full-time basis?

In Inoue v NBK Designs [2003] E.L.R. 98, the employee, who was a single parent, was a part-time secretary/personal assistant who had a job sharing position with another employee due to her family responsibilities. The employer decided to merge the two posts, creating a full-time position. The employee was asked to take on this role but was unable to do so having regard to her family responsibilities. As a result, she was dismissed. The Labour Court accepted that women who have children and are single, separated or divorced find it more difficult to work full-time than fathers who are single, separated or divorced and for that reason, the Court found prima facie evidence of indirect discrimination on the grounds of gender.

The Court rejected the objective justification advanced by the employer to the effect that there would be an improvement in the efficiency of the administrative work performed by the two job-sharers in the work being performed by one of them. The Court did not accept that it was essential for the shared post to be a full-time post occupied by one individual. The fact that the Labour Court went as far as considering whether or not it was “essential” for the post to be a full-time post demonstrates the high onus on an employer to objectively justify the requirement for a post to be a full-time one only.

Code of Practice on Access to Part-Time Working

The Industrial Relations Act 1990 (Code of Practice on Access to Part-Time Working) S.I. No. 8 of 2006 provides, among other things, that employers should have in place a policy that specifies how part-time work requests are handled. The Code of Practice, which is a non-binding statutory code, is taken account of by the Equality Tribunal and Labour Court in proceedings before those fora.

The Code of Practice states that an employers part-time working policy should:

  • require an employee to submit an application that sets out the reason for their request;
  • specify the decision making time frame and detail the factors that will be taken into account in considering such requests;
  • require the employer to issue a reasoned written decision on the application; and
  • provide for a right of appeal against the decision made.

The Code of Practice acknowledges that employers will not be in a position to accede to all part-time working requests and states that an employer would be justified in refusing a request if granting it would have an adverse effect on the operation of the employer’s business or would lead to staffing difficulties.

In Morgan v Bank of Ireland [2008 19 E.L.R. 339], an employee sought part-time working arrangements as she was planning an overseas adoption. Her application was approved subject to operational requirements. However, she was ultimately only offered a job share arrangement some years later as her employer asserted no suitable vacancy arose in the meantime. The Equality Officer referred to the Code of Practice and noted that while the employer did have a flexible working policy in place, it did not conform with the requirements of the Code of Practice. The Equality Officer, in addition to finding in favour of the employee, directed the employer to implement a procedure for processing part-time working applications that was in accordance with the Code of Practice.

This case serves as a salutary warning to employers of the importance of ensuring not only that they have a flexible working policy in place, but one that complies fully with the provisions of the Code of Practice.

How should employers handle flexible working requests?

Firstly, employers should ensure they have in place a policy that details how a flexible working request will be processed. This policy should comply with the Code of Practice and be clearly communicated to all staff. Once a request is received, it should be processed in accordance with the policy and most importantly, be given reasonable consideration by the employer. If the request is granted, any consequential changes to terms and conditions of employment should be documented and signed by both parties. If the request is to be refused, the employer must be able to objectively justify that refusal. The size and resources of the employer will be relevant in determining whether the objective justification advanced stands up to scrutiny.

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