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A UK employment tribunal recently held that a former Newcastle United soccer player had been discriminated against, by reason of his disability, on being dropped from the team following his return from treatment for testicular cancer. It also held that the board of Newcastle United had failed to provide reasonable accommodations for Jonas Gutiérrez by failing to take into account his absence owing to his illness, when considering whether he was entitled to a one-year extension.
Just two months following his surgery, Mr Gutiérrez was told that he would no longer feature in the club’s future. As a result of this decision, he was left two games short of the 80 games required to trigger the contract extension option. It has been reported that Mr Gutiérrez could be awarded up to £2 million in compensation.
This employment tribunal decision acts as a stark reminder to employers of the dangers of failing to provide reasonable accommodations to disabled employees, especially in circumstances where employees are subsequently dismissed.
Decisions in this jurisdiction suggest that caution must be exercised by employers regarding their duty to provide reasonable accommodations for employees suffering from a disability. Employers may even be required to permit an employee to return to a substantially modified role. However, the High Court recently acknowledged in Nano Nagle School v Daly [2015] IEHC 785 that these onerous obligations to provide reasonable accommodations should not impose a disproportionate burden on the employer, stating, “it may or may not be relevant to consider whether a point is reached where the appropriate measures transform the job into something entirely different from that which originally existed”.
In that case, Ms Daly, a Special Needs Assistant who suffered severe spinal injuries was successful in her employment equality claim, where her employer dismissed her on the grounds of medical incapacity. The school’s medical evidence was that Ms Daly was in a position to complete nine out of the 16 duties required under her contract. The High Court held that the school had failed to discharge its obligation to provide reasonable accommodation, as it had only considered the accommodations required to enable her to return to all of her duties as an SNA and not those requirements to enable her to return to adjusted duties.
Irish Equality legislation and case law imposes onerous obligations on employers to ensure that it engages in a meaningful assessment of how it can accommodate an employee suffering with a disability. There is no prescriptive approach for employers in these matters as situations must instead be assessed on a case by case basis.
Authors: Niall Hayes and Barry Walsh