The case of Victorine Neuray v LIRG5 Ltd, ADJ-00029639 recently came before the WRC. The outcome of this case is interesting and highlights the importance of an employee giving clear notice to their employer about their disability, before claiming the right to reasonable accommodation. The claimant and her husband were persons with a disability. The Complainant who worked for the Company for 13 years claimed that her employer failed to provide her with reasonable accommodation under Section 16 of the Employment Equality Acts (“The Acts”). The claim came about when the Company moved premises in 2020. The employee started in the role in 2007 and did not sign the terms and conditions that included a move to a new location. The claimant described her shock at finding out about the move. She was concerned about the length of travel time and lodged a grievance. The grievance was heard by an independent consultant, but this did not resolve matters.
The complainant had a variety of grievances including contract claims, carer claims, cost claims, a redundancy claim and a claimed dismissal. However, ultimately a complaint relating to the Employment Equality Acts came before the WRC for Adjudication.
During the hearing the complainant described her husband’s health difficulties and her need to be available for him in the event of emergency. She also spoke about her own health issues and that she received medical advice that she should not do too much driving.
The Adjudicator’s decision centred on the question as to whether the employer was under notice of the employee’s disability. In relation to her husband the adjudicator confirmed that there was nothing in the legislation which provides for Section 16 of the Act to be initiated in respect of a relation of an employee.
In relation to the employee’s own disability the adjudicator took the view that any references made to the employer about her own health were vague and were an ‘add-on’ to her husband’s ill health and her role as carer. The Adjudicator determined that the employee failed to provide evidence that her disability qualified under the Act. She referred to the various medical certs that were submitted in 2020 by the employee and concluded that it was not unreasonable to conclude that if the medical advice provided evidence of the disability, it should have been provided to the employer. She also referenced the importance of employers having such information to allow them assess fitness to work and obtain their own medical evaluation.
The Adjudicator specifically stated that in concluding there never was a claim for a reasonable accommodation within the terms of Section 16 of the Acts. She did so, not doubting that the Complainant did have some health issues, but that at no stage did she make a claim of a disability that contained the medical grounds why she was unable to commute the extra distance or work full time and neither did she provide any medical evidence to support such a claim. The Adjudicator made the following comment in relation to claims for Reasonable Accommodation.
“The terms of the Directive and the enabling legislation providing for a reasonable accommodation-are not inactive provisions, they provide a positive onus on employers to do what is reasonable and proportionate to enable the participation of disabled persons in the workforce. It follows therefore that while some employers may take an initiative to facilitate a person with a disability – there is at least an equal onus on the same person to indicate they are seeking to trigger their entitlements under the legislation – even if it is only to use the term or to say they have a disability, but are seeking to for example resume work."