Equality law update: Does an employer’s duty to provide ‘reasonable accommodation’ apply to caregivers?

In the case of G.L. v AB SpA (C-38/24), the Court of Justice of the European Union (the CJEU) has clarified that the obligation on employers to provide reasonable accommodation pursuant to Directive 2000/78/EC (the Equality Directive) extends to employees caring for family members with a disability, but who do not themselves have a disability.

The Equality Directive was transposed in Ireland by the Employment Equality Acts, 1998-2021 (the EEA), and the duty to provide reasonable accommodation arises pursuant to section 16 of the EEA.[1]

It is noteworthy that the concept of discrimination under the EEA already includes: (i) where a person associated with a person with a disability (or another protected characteristic) is treated less favourably, by virtue of that association; and (ii) indirect discrimination i.e. where an apparently neutral provision puts a person (by virtue of a protected characteristic) at a particular disadvantage as compared with others. Indirect discrimination is unlawful unless the employer can show the provision is objectively justified. 

What happened in this case?

GL was employed by AB as a station operator in an underground station in Italy. She was also a caregiver for her severely disabled child. Considering her caregiving obligations outside of work, GL repeatedly requested that her employer provide her with permanent fixed morning shifts to accommodate her caregiving needs.

AB did not grant GL’s requests but did provide her with some accommodations on a provisional basis. GL subsequently initiated proceedings against AB in the Italian District Court, claiming discrimination, with reference to the provisions of the Equality Directive and the implementing domestic legislation in Italy. The Italian District Court ruled against her. G.L. appealed the decision all the way to the Italian Supreme Court, who in turn referred the following questions to the CJEU:

1. Does the prohibition of indirect discrimination on grounds of disability apply to an employee, who does not themself have a disability, but who is subject to such discrimination because of the assistance they provide to their child, who has a disability?
    
2. If the answer to the first question is yes, is an employer required to make reasonable accommodation in respect of an employee, who does not have a disability, but who provides the assistance enabling their child, who does have a disability, to receive the care they require?  

What did the CJEU decide?

The CJEU answered the two questions in the affirmative and held that the Equality Directive prohibits indirect discrimination in respect of employees, who do not themselves have a disability, but because they care for a child with a disability. The CJEU held, by extension, that the duty to provide reasonable accommodation extends to an employee providing required care to a child with a disability, if this does not impose a disproportionate burden on the employer.

What are the key takeaways for employers?

The judgment has substantial practical implications for employers, who must give due consideration to requests for accommodation from employees caring for a family member with a disability. In considering whether any such accommodation would impose a disproportionate burden, the CJEU expressly highlighted factors such as the financial costs, organisational resources and available public funding. Factors already highlighted in section 16 of the EEA.  

While this judgment is no doubt a welcome development for employees who wish to remain in the workplace while juggling caring responsibilities for family members with disabilities, the judgment does leave questions unanswered in terms of how the requirement to provide reasonable accommodation to employees, who do not themselves have a disability, should operate in practice. For example, to what extent supporting information may be requested and relied upon e.g. medical evidence in relation to the family member with the disability in question and the care they require.  

This expanded duty to provide reasonable accommodation is likely to overlap with the recently introduced right to request flexible working arrangements for employees with caring responsibilities under the Work Life Balance and Miscellaneous Provisions Act 2023 (the 2023 Act).Where this occurs, employers will have to balance their obligations under both legislative regimes.[2]

Going forward, it will undoubtedly be important for employers to bear in mind the CJEU’s ruling in this case when considering the impact of working conditions on employees with caregiving responsibilities. 

For further information in relation to the topic, please contact Tríona Sugrue, Senior Practice Development Consultant, Caoimhe Grogan, Solicitor, or any member of the ALG Employment Team.