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20 February 2019
The Industrial Tribunal recently examined the concept of reasonable accommodation and what employers should do to cater for employees in an appropriate manner.
In June 2013 X was employed as a full-time creative web designer by Company Y. He earned a gross salary of just over €30,000 per year. Prior to being engaged by Company Y, X had informed them that he suffered from a heart condition.
After being employed for just under a year, X asked Company Y whether he could work from home as advised by his cardiologist. X stated that this arrangement would help to improve his heart condition, as it would result in less physical stress. X's cardiologist later emphasised during the proceedings that it was in fact the commute to work which had created the stress that led to the deterioration in X's health, not the work itself.
Company Y accepted X's proposal to work from home and stated that he could do so for a four-week trial period. The trial period went well and was extended indefinitely. All of the parties involved understood that working from home had aided in X's recovery. After a few months had passed, Company Y requested that X return to work in the office. Company Y gave him three options:
X refused all three options, as he was afraid that they would worsen his heart condition. This decision resulted in Company Y terminating him, stating that he had abandoned work.
X filed a case before the Industrial Tribunal claiming that he had been discriminated against due to his heart condition and unfairly dismissed.
The tribunal started off by stating that 'telework', as defined under Maltese law, is not an obligation on employers towards employees. 'Telework' is defined in the Telework National Standard Order(1) (TNSO) as:
a form of organising and, or performing work, using information technology, in the context of an employment contract or relationship, where work, which could also be performed at the employer's premises, is carried out away from those premises on a regular basis.
X's work fell within this definition while he was working from home. While the tribunal acknowledged that employers have the right to refuse any teleworking proposal, it stated that once an employer has agreed to allow employees to telework, these employees must be treated in the same manner as all other employees, in accordance with Article 9 of the TNSO.
After the initial discussion, Company Y had agreed to allow X to telework and had extended the original trial period. Therefore, the tribunal based its analysis on the fact that although X was a 'teleworker' as defined by law, he still had the same rights as on-site employees.
In order to decide on X's claims, the tribunal examined the Equal Opportunities Act (Chapter 413 of the Laws of Malta). The act defines 'disability' as:
a long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder one's full and effective participation in society on an equal basis with others.
The tribunal stated that from the testimony given by X and his cardiologist, it believed that X fell under this definition, as his condition hindered him from full and effective participation on an equal basis with others.
The tribunal, quoting X's final submissions, referred to HK Danmark.(2) According to the tribunal, the European Court of Justice found that the concept of accommodation must be given a wide interpretation. The tribunal stated that from its findings, it was aptly clear that the company did not plan to introduce any form of teleworking policy. It continued by stating that a policy cannot be discriminatory, nor can the lack of policy. Further, the tribunal noted that employers must address any disadvantages to employees created by a policy.
The tribunal referred specifically to Article 7(1) of the Equal Opportunities Act, which states that no "employer shall discriminate on the grounds of disability against a qualified person with a disability in regard to – (e) any other terms, conditions and privileges related to employment".
It also referred to Article 7(2), which states as follows:
an employer shall be considered to discriminate on the grounds of disability against a person as referred to therein, if such employer unreasonably – (d) fails to make a reasonable accommodation for the disability of such a person, unless the employer can prove that the required alterations would unduly prejudice the operation of the trade or business run by such employer.
The tribunal went on to refer to Article 7(5) of the act to define the phrase "make a reasonable accommodation". According to the tribunal, in this particular circumstance, Article 7(5)(b) of the definition would apply:
structuring jobs, instituting part-time or modified work schedules, reassigning vacant positions, acquiring or modifying equipment or devices, appropriately adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters, and making any other similar alterations for a person with a disability.
The tribunal detailed how the different actions resulting in reasonable accommodation stated within the act should have been considered by the company. The tribunal went on to highlight that these actions were important when examining the case.
Although UK law, guidelines, judgments and similar tools are not binding on the Maltese judicature, they are commonly used – especially where the law or case law is silent on a particular matter. In this case, the tribunal referred to the Employment Statutory Code of Practice.(3) In particular, Section 6.28 of the code provides different factors which must be considered when deciding the reasonable steps an employer should have taken. The tribunal also quoted Section 6.29, which states that "the test of the 'reasonableness' of any step an employer may have to take is an objective one and will depend on the circumstances of the case".
The tribunal also referred to a UK Employment Appeal Tribunal judgment(4) to conclude that although X's working arrangements were unpopular with his colleagues, this was not a valid reason to alter X's working arrangements and that to do so would be considered discriminatory.
The tribunal examined X's claims and decided in his favour, awarding him €20,000 for unfair dismissal and another €10,000 for discrimination by Company Y. While this award is unusually high when compared with other Industrial Tribunal awards over the years, it is unsurprising when compared with other recent judgments in which the Industrial Tribunal has granted compensation on the higher end of the spectrum.
For further information on this topic please contact Michael Paul Agius at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email (email@example.com). The Fenech & Fenech website can be accessed at www.fenechlaw.com.
(3) Employment Statutory Code of Practice, Equality and Human Rights Commission.
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