Recent disability discrimination case highlights delay in considering reasonable accommodation

A retailer has been ordered to pay €14,000 to a claimant after the Equality Tribunal held that it had failed to provide reasonable accommodation to the claimant salesman who went on sick leave due to deteriorating eyesight (Alistair Clews v DSG Retail (DEC-E2014-081).

The case highlights that delay on the part of the respondent in considering reasonable accommodation can in itself constitute a failure to provide reasonable accommodation.

The complainant was employed as a sales person by the respondent company since circa 1997. In 2008 he noticed a deterioration in his eyesight. He contacted the National Council for the Blind of Ireland who advised him to have a work assessment carried out and give it to his employer. The complainant stated that the respondent received the assessment (which stated that he could work but that his work environment should be as uncluttered as possible) but did not act. His eyesight deteriorated further and in December 2009 he began to bump into customers and staff. In January 2010 he reported sick due to his eyesight problem. As of May 2010 the respondent employer was in possession of independent medical advice as to the complainant’s capacity. In February 2011 it offered the complainant other roles in the organisation. The Tribunal did accept that the respondent gave serious consideration to other roles that the complainant could take within the business however it was particularly critical of the long delay. 

It accepted that the respondent acted correctly when it offered the complainant alternative employment or roles in February 2011 however at that point the complainant had been away from the workplace since his request to return (in May 2010) for nine months and had been without pay for six months. The respondent submitted that the delay was “not discrimination but due to an internal situation that created an unfortunate time lapse in dealing swiftly with the case”. However the Tribunal did not accept this and said regardless of the intent of the respondent it is clear that the complainant was forced to remain away from the workplace due to the delay of the respondent in giving consideration to reasonable accommodation.

It held that the respondent’s length of delay in making adequate enquiries so as to establish fully the factual position in relation to the complainant’s capacity and the circumstances of the delay were unacceptable and constituted a failure to provide reasonable accommodation.

The case is a useful reminder for employers of the full extent of the scope of the duty to provide reasonable accommodation and that any delay in considering same may in itself be deemed a failure to provide reasonable accommodation.

For more information please contact Sinead Grace, sgrace@algoodbody.com or your usual contact in A&L Goodbody Solicitors.

Date published: 14 April 2015