Accommodating Diversity When Returning to the Workplace

        Professor Mark Bell, Trinity College Dublin

During the lockdown, many workers unexpectedly found their normal place of work closed and they were required to start working from home (WFH). As Alan Eustace has discussed in this blog, existing employment legislation may be difficult to apply to the unforeseen context where WFH becomes the norm, rather than the exception. As lockdown restrictions are eased, another unanticipated scenario arises where employers and workers have to navigate the gradual resumption of activities in the workplace. This blog explores the need for employers to take into account their obligations in anti-discrimination law during this process. 

The Employment Equality Acts (EEA) 1998-2015 prohibit discrimination on nine grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. The legislation does not specifically address the question of WFH, but it is a common type of workplace adjustment that can further the inclusion of certain workers. For example, those with caring responsibilities may find the option of WFH a helpful way to juggle work and family life. Some workers with disabilities also value the possibility of WFH, such as those with an impairment that causes fatigue. In respect of those with caring responsibilities, an employer’s refusal to permit any form of WFH raises potential issues of indirect discrimination (s. 22 and s. 31 EEA) on grounds of gender and family status insofar as this could put women or those with dependents at a particular disadvantage compared to men or those without dependents. In relation to employees with disabilities, a refusal to permit WFH might be contrary to the duty on employers to provide reasonable accommodation (s. 16 EEA). Of course, both the prohibition of indirect discrimination and the duty to provide reasonable accommodation are qualified by the possibility for the employer to raise sufficient reasons that justify refusing to permit WFH. 

How does this landscape look in the light of the pandemic? The experience of recent months has demonstrated that many jobs can be effectively performed remotely and this seems likely to change employers’ attitudes towards permitting WFH. A recent survey suggested that 70% of Irish employers were now open to facilitating WFH, compared to 10% before the pandemic. Nevertheless, as employers reopen their workplaces, there will be a growing range of circumstances in which employers want their employees to return to the workplace, at least some of the time. In making decisions about which employees are required to return to the workplace, it is important that employers take into account their obligations under the EEA. Some workers with disabilities will be at a higher risk of becoming seriously ill if they develop COVID-19, so WFH could be a reasonable accommodation in order to reduce this risk. If employees have been able to perform effectively their job during the past three months when WFH, an employer would need very strong evidence to demonstrate that such an accommodation is no longer reasonable to provide. The advice from the HSE is that those over the age of 60 are at a high risk, and those over the age of 70 are at a very high risk, of becoming seriously ill if they develop COVID-19. While there is no specific legal obligation to provide reasonable accommodation for workers on grounds of age, employers need to consider whether refusing to permit workers over the age of 60 to continue WFH might constitute indirect discrimination. Arguably this could put such workers at a particular disadvantage because of their heightened risk of becoming seriously ill, so employers will need to have evidence to sustain that requiring their attendance at the workplace is an appropriate and necessary means of pursuing a legitimate aim. It should also be taken into account that the Return to Work Safely Protocol recommends that vulnerable workers are permitted to work from home where possible. 

The curtailed availability of childcare and the uncertainty around the schedule for schools mean that some employees may encounter obstacles to returning to the workplace. Given that this will impact more heavily on women and those with dependents, then employers need to be alert also to the possibility that a rigid requirement to be present in the workplace could give rise to potential indirect discrimination on the gender and family status grounds.

The discussion above does not mean that employers can never find a reasonable basis for requiring workers to cease WFH and to return to the workplace. There may be essential job functions that can only be effectively performed at the physical premises of the employer. Even then, it is important to bear in mind that the Supreme Court has clarified that the duty of reasonable accommodation for persons with disabilities extends to the redistribution of tasks amongst the workforce. In practice, many employers are likely to show flexibility in the coming months. Indeed, given employers’ need to ensure social distancing at the workplace, often employers might be insisting that employees continue WFH, at least some of the time. Upending the normal scenario, we might see situations where it is employees who want to be permitted to attend their workplace, eg because caring responsibilities make it difficult to find a quiet space to work at home. 

As we head into a new period where working life co-exists with the presence of COVID-19, employers and workers face new dilemmas in negotiating the balance between WFH and working at the workplace. The obligations found in the Employment Equality Acts provide a helpful framework for weighing up the competing considerations. 

Professor Mark Bell is Regius Professor of Law and Head of the School of Law at Trinity College Dublin. His work focuses on Anti-Discrimination Law and Employment Law, particularly in relation to EU Law.

Suggested citation: Mark Bell, ‘Accommodating Diversity When Returning to the Workplace’ COVID-19 Law and Human Rights Observatory Blog (6 July 2020)  http://tcdlaw.blogspot.com/2020/07/accommodating-diversity-when-returning.html

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