Employer Resources Newsletter - June 2021

The Health and Safety Authority (HSA) published its ‘Employees with Disabilities – An employer’s guide to implementing inclusive health and safety practices for employees with disabilities’. The guide, which was drafted in consultation with the National Disability Authority and other charitable bodies, addresses areas of safety in the workplace, occupational health as well as facilities management relating to the health, safety and welfare of employees with disabilities.

Under the Safety, Health and Welfare at Work Act, 2005, employers are responsible to ensure a safe workplace for all employees. And under the Employment Equality Acts, employers are obliged to reasonably accommodate people with disabilities and must take “reasonable measures” to meet the needs of employees with disabilities.

It is estimated that one in nine people in Ireland have some form of disability, physical, visual, intellectual or sensory, with some having more than one. Therefore, a considerable proportion of the workforce is affected in some way with a disability. Employers are obliged to make “reasonable accommodation” to allow people with disabilities access to employment, participate in employment and training. This includes things like adapting the workplace environment, work patterns and the distribution of tasks.

Creating an inclusive workplace

It is best practice when creating an inclusive workplace that employers and employees with a disability consult about their specific needs and requirements in order to ensure a safe and healthy environment.

It is also good practice to ask all employees at different times if they have any specific health and safety requirement, regardless of whether they have a disability. This helps create an inclusive culture within organisations.

Safety Statements, which Organisations are legally required to have in place, should have considerations for particular risks for employees with disabilities. Considerations should include limited sight, hearing, dexterity or sensory conditions such as autism.

All health and safety policies and procedures should be reviewed regularly as a matter of course but specifically if there are employees with disabilities as their requirements may change over time due to their disability.

Safe evacuation of all employees

The safe exit or evacuation of a workplace can present challenges if there are employees with disabilities. Issues such as mobility impairment affecting the speed and range of movement, sensory impairment affecting sight and hearing, cognitive disability can affect how someone may process the urgency of an emergency situation. However, these challenges must be met.

Planning for the safe evacuation is critically important and there are some key steps outlined in the Guide, including:

Initial review of user needs, organisational practice and policies
Develop an egress policy for your Organisation
Plan for egress,
Implement your egress plan
Measure the performance of your egress plan
Review the performance of your egress plan.

Consulting with employees with disabilities is important to help identify potential risks and hazards that could impede the safe evacuation of the workplace. Any information garnered from these consultations should be included in the Personal Emergency Egress Plan, which every Organisation should have. And, the plan should be reviewed, tested and updated regularly through evacuation drills.

The Guide also outlines some very useful “Dos & Don’ts” including:

DO recognise that your remit in terms of health and safety ‘duty of care’ is to all employees.
DO carry out risk assessments and develop control measures to minimise identified risk.
DO ensure an inclusive workplace where all employees’ needs are respected.
DON’T presume there is no one on your staff who is living with a disability. Many disabilities are not readily apparent and people may not have disclosed for a wide variety of reasons.
DON’T talk to an employee’s doctor about his or her needs without their worker’s consent.

The Guide can be found here and all employers should familiarise themselves with the guidance and advice as well as making sure they are compliant with the relevant employment legislation.

€60,000 awarded to employee with a disability for failure to make reasonable accommodation

An employee alleged she was forced to retire early due to ill health and had been discriminated against on the grounds of disability was awarded €60,000, the equivalent of 18 months' salary. This case highlights employers should take note as the obligation to make reasonable accommodation for employees with disabilities is a responsibility under employment legislation.

Legal obligation to make reasonable accommodation

There are nine grounds on which employers are prohibited from discriminating against employees; age, civil status, disability, family status, gender, race, religion, sexual orientation and membership of the travelling community. In addition to the prohibition on discrimination in the workplace, there are further obligations on employers regarding employees with a disability or disabilities.

The Employment Equality Acts 1998 to 2015 provide that an employee with a disability is to be regarded as fully competent to undertake any duties if the employee would be so fully competent and capable of performing the duties upon the employer making reasonable accommodation for the employee. Reasonable accommodation requires an employer to consider whether there are appropriate measures that they should take to support the employee with a disability to carry out their duties before the employer can decide that the employee is incapable of doing their particular job.

Under the legislation, employers are obligated to undertake appropriate measures ensure a person with a disability to access, participate and advance in employment and training unless the appropriate measures would impose a disproportionate burden on the employer (such as cost). These measures could include changes to the layout of the office or workplace, changes in work practices and potential redistribution of duties. When considering if reasonable accommodation sought would impose a disproportionate burden, employers are required to consider the likely costs, their own resources and the possibility of obtaining public funding or assistance.

Summary of case

The employee, the Claimant, alleged her employer discriminated against her on the grounds of disability by failing to make reasonable accommodations that would enable her to continue working. The Claimant suffered from obsessive compulsive disorder, which caused her to suffer significant anxiety about using the toilets at her workplace.

She had developed incontinence due to avoiding using the toilets for long periods of time and had received medical advice to go to the bathroom every three hours. The Claimant had been absent from the workplace while on maternity leave and in advance of her return, she contacted her employer and requested reasonable accommodation. The employer arranged for the Claimant to be seen by an occupational health expert to assess her fitness to return to work, which she did on a number of occasions. They discussed a number of options that could support her return to work.

The Claimant asked for her own toilet at work, to work from home on a full or part-time basis or granted extended breaks to allow her to return home to use her own bathroom.

The employer declined to make these accommodations on the grounds that the Claimant's role was student-facing and team based and due to data protection concerns. The Claimant did initially return to work but soon found her health issues too stressful to continue and ultimately retired early on ill health grounds.

Decision of the WRC

The Adjudication Officer found that the employer did not provide any evidence that it carried out any assessment of the option of the Claimant working from home, on a part-time or full-time basis. The employer stated that it did not have a work from home policy. The employer had also conceded that another employee had been permitted to work from home for a short period of time. The Officer held that the failure of the employer to carry out an individual assessment of the various working from home options and to provide an explanation for the reasoning for allowing another employee work from home but declining the Claimant’s request amounted a failure to take appropriate measures to enable the Claimant to participate in employment. It was therefore held that the employer had discriminated against the Claimant on the grounds of disability.

The Claimant's constructive dismissal claim was unsuccessful as the Claimant had not exhausted the employer's internal grievance procedure before making her own decision to resign. However, the employer was ordered to pay a sum of €60,000, equivalent to eighteen month's salary, as compensation for the effects of discrimination.

Points to note for employers

Employers should be mindful of their obligation to make reasonable accommodations for employees with disabilities where appropriate. This includes requests to work remotely by employees who may be particularly medically vulnerable to issues relating to Covid-19 (it’s also worth noting that the Government announced its support for remote working with the announcement of its National Remote Working Strategy). Other reasonable accommodations that may be requested include changed working hours or a change of location of work station in the office.

If an employee discloses that they have a disability, even something that could be considered temporary, the employer should refer the employee to an occupational health expert for an assessment of their fitness to work in their role and what, if any, measures should be taken to accommodate them. The employer should then assess the recommendations made by the occupational health expert and examine whether the measures are appropriate and the costs and resources required.

Employers should take care to ensure they are not deviating from any precedent set for any other employees in the past.

And, ultimately, the employer should consult with the employee during the process.

Sick Leave & Pay

The Government recently announced the details of its General Scheme of the Sick Leave Bill 2021.

Currently, there is no legal obligation on employers to pay an employee who is absent due to illness. However, the Government is introducing sick pay and sick leave rights for employees, which will begin to be phased in over four years from January 2022.

The new legislation will mean that employers must provide a minimum number of paid sick days annually from 2022.

Sick leave coverage

The new statutory sick pay scheme commences with three days sick leave per year in 2022, rising to five days payable in 2023 and, seven days payable in 2024.

Employers will eventually cover the cost of 10 sick days per year in 2025. It is being phased in to help employers, particularly smaller organisations, to plan ahead and manage the additional cost, which has been capped.

Phasing of Paid Sick Leave:

2022 – 3 days covered by employer
2023 – 5 days covered by employer
2024 – 7 days covered by employer
2025 – 10 days covered by employer.

Amount of sick pay

Sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily threshold of €110. It can be revised over time by ministerial order in line with inflation and changing incomes.

Employees must have a minimum of six month’s service with the employer to be eligible to receive statutory sick pay and it is also a condition of the scheme that the employee is medically certified as unfit to work. The employer will deduct taxes in the normal manner.

Given this will be an additional cost burden on employers, employers in the Charity and non-profit Sector need to plan for the potential impact of the scheme and also consider where changes to existing policies are required, once the new scheme is introduced.

Economic Recovery Plan

Earlier this month, the Government announced its Economic Recovery Plan setting out a range of measures relating to the extension of employment-based supports but also the planned investment and policies for a new stage of economic recovery and renewal.

Extension of Existing Supports

Pandemic Unemployment Payment (PUP): The PUP has been extended beyond 30th June for existing claimants. The Government intend closing the scheme to new entrants from 1st July and after 7th September, the current rates of support under the scheme will be gradually reduced on a phased basis.

For employers in the Charity and non-profit sector this continued assistance will prove essential to staff who have been laid off, but also acts as a signal to re-evaluate the workforce.

Emergency Measures in the Public Interest (Covid-19) Act 2020: The right of an employee to give notice of a redundancy claim following a period of layoff or short time work due to the pandemic was temporarily suspended. Under the Economic Recovery Plan, the Government has signalled one final extension to 30th September 2021, to allow employers the opportunity to assess the needs of the organisation including their staffing needs, as the economy re-opens and restrictions continue to ease.

Similar to the impact of the changes to the pandemic unemployment payment, this also acts as a signal for organisations within the Charity and non-profit sector to re-evaluate and re-assess the needs of the organisation.

The Employment Wage Subsidy Scheme (EWSS): The EWSS has been extended again until 31st December 2021 and while the current payment rates will be maintained throughout the summer months the rates after September are yet to be determined. One important change to the EWSS is that the qualifying criteria is to change to now account for turnover this year, relative to 2019 prior to the pandemic.

New Codes of Practice on Bullying in the Workplace

In January, a single joint Code of Practice, The Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 was published, which provides a positive addition to the protections for employers and employees from unwanted behaviour.

The new Code provides useful signposting for employers regarding appropriate procedures and processes when a complaint of bullying is lodged. A welcome inclusion is a definition of bullying together with a list of examples of bullying behaviour along with examples of behaviours that will not be considered bullying.

Employers and people managers will welcome the provision in the Code that “objective criticism and corrections that are intended to provide constructive feedback to an employee are not usually considered bullying, but rather are intended to assist the employee with their work”.

Other listed exclusions from bullying type behaviour include:

Expressing differences of opinion strongly
Offering constructive feedback, guidance, or advice about work-related behaviour which is not of itself welcome
Ordinary performance management
Reasonable corrective action taken by an employer or supervisor relating to the management and direction of employees (for example managing a worker’s performance, taking reasonable disciplinary actions, or assigning work)
Workplace conflict where people disagree or disregard the others’ point of view

The new Code also includes some other important provisions, such as employers must act reasonably to prevent workplace bullying patterns forming and where a complaint is made, they must respond reasonably, assess the complaint, record the actions taken and initiate a suitable response on a case-by-case basis.

Employers must develop a proper workplace anti-bullying policy, in consultation with employees, to ensure a system is in place for dealing with complaints and that disciplinary action may follow where bullying is found to have occurred. Other useful considerations for employers prompted by the 2020 Code include:

The benefits for an organisation in having a “Contact Person”; someone who acts in a confidential, supportive capacity for the victim, who offers guidance on the various options in line with the organisations’ policies and procedures, but who is not involved in the investigation of the complaint. This would require training for the Contact Person.
Consideration of the merit of using suitably qualified internal or external mediators when seeking to resolve issues at any early stage.
Ongoing training on Bullying and policy awareness for all employees but particularly for persons who will be involved in facilitating the complaints process.

In light of the Code, employers should revisit their health and safety statements and review current policies and procedures to ensure they are in line with what has been proposed. Employers should ensure they have appropriate supports in place as well, such as Employee Assistance Programmes. Adequate training for line managers is also crucial to effectively manage complaints of bullying. And, clearly communicating what is and isn’t acceptable behaviour is also important.