The BC Supreme Court
recently struck down the highest damages award ever seen in the province for a human rights complaint but while the case centred on an expelled medical student, one leading employment lawyer says HR professionals should take note.
Dr. Carl Kelly brought the case against the University of British Columbia (UBC) after the institution dismissed him, certain he would be unable to complete the program or practice successfully in future.
Kelly – who has attention deficit hyperactivity disorder and non-verbal learning disorder – had been struggling to meet the requirements of the program but claimed his dismissal was actually down to the institution discriminating against him on the basis of mental disability.
The tribunal made a number of awards to compensate Kelly, including an award of $75,000 for injury to dignity, feelings, and self-respect – the figure is more than double the previous watermark of $35,000 in similar cases of discrimination involving mental or physical disability.
Although the $75,000 award was later found to be unreasonable, the court was also hesitant to comment on what an appropriate amount should be, leaving open the possibility that the award could still exceed the previous record of $35,000.
Why HR should care
While Kelly was a student rather than an employee, employment lawyer Nicole Byres says the situation mirrors one many HR professionals may find themselves in at some point – when it comes to accommodating employees to the point of undue hardship.
“UBC is operating as best it can to put out qualified doctors with various testing and they might have got it wrong in terms of what they had to do to accommodate this guy but they were doing their best to accommodate him with what they thought was within the parameters of the law and other constraints that they had with this medical program,” Byres told HRM.
“The human rights tribunal and now the courts are saying that you have to go further than you ever had to before,” she continued. “What you thought was good enough isn’t good enough – what you thought was standard isn’t the standard – you’ve actually got to do a lot more.”
Miller and Thomson partner Byres says the definition of “undue hardship” depends entirely on the individual employer, employee and situation.
“What might be undue hardship for a company with five employees may be very different than an employer who has 5,000 employees,” she explained.
And it’s not just disability that employers have to make accommodations for – Byres predicted there’ll be an increase in cases relating to discrimination on the basis of family status.
“Those are those cases in which, for example, an employee may have a shift change or shift schedule which has a material effect on their ability to care for their children or parents if it’s in an eldercare situation,” explains Byres.
“Those are situations in which employers are being asked to accommodate and it can’t just be ‘no too bad that’s what our shift is’, you have to really look at the situation and see if it meets the threshold of the test of what lawyers called prima facie discrimination,” she continues.
In other words, is there a material right that’s being impacted? It has to go beyond an inconvenience for the employer and into and impossibility.
“It’s got to be a real impact where there are no reasonable alternatives,” confirmed Byres. “Then an employer is going to have to look at what they can do.”
With the cost of human rights cases continually creeping up, Byres says employers should do everything they can to keep out of the courts.
“Avoid the complaints if you can, if you’ve got situations of accommodation, be prepared to look at them freshly every time with the facts that you have available because things change and one size doesn’t fit all,” she stressed.
“The message in this UBC case is definitely to always consider and reconsider what you can and can’t do in terms of accommodating someone under a protected right,” Byres told HRM.
“Sometimes we just don’t re-examine everything really carefully over and over again – what can we do what can’t we do – and that’s where employers and companies will get into trouble, by not doing a good enough job at that investigation stage,” she stressed.
“Even when it sounds like you’ve been over something like this with another employee before, always take a look at the unique situation,” she added.
Have you had experience with accommodating employees? Share your stories below.
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