In May 2024, the BC Human Rights Tribunal decided that Telus Employer Solutions (TES) was reasonably certain to prove that any discriminatory conduct that might be proven at a hearing was justified. In McNeil v. Telus Employer Solutions (TES) (No. 2), 2024 BCHRT 166 (CanLII), the Tribunal considered both the Complainant's and the Respondent's respective points of view when deciding if there was no reasonable prospect that the complaint would succeed. Its consideration was guided by analysis from the BC Supreme Court, following the Complainant's successful judicial review of an earlier decision to dismiss the complaint.
THE FACTS
Events at issue in this case date to 2018 when Ms. Dawn McNeil was working at TES as an employee with a series of temporary employment contracts and had asked to take advantage TES's work from home policy called “Work Styles Program” due to environmental sensitivities/allergies. The default at TES was a “work from office standard” and eligibility to work from home involved an assessment of individual circumstances, job performance and function, mobile readiness, and space availability. In denying Ms. McNeil's request to work from home, TES considered the eligibility requirements before declining to allow her to work from home. In considering whether TES could defend that decision e.g. whether it had a bone fide occupational requirement for Ms. McNeil to be in the office, the Tribunal had to consider TES' evidence about:
- The work from office standard, and how it was rationally
connected to the performance of the job.
- The adoption of the work from office standard, for instance was
it adopted in good faith and in the belief that it was necessary to
fulfill a legitimate work-related purpose.
- Whether the work from office standard was reasonably necessary
to accomplish the legitimate work-related purpose, in the sense
that the employer could not accommodate people sharing Ms.
McNeil's protected characteristics.
When the evidence was considered, the Tribunal concluded that TES was reasonably certain to prove at a hearing that it had a bone fide occupational requirement for not allowing work from home on the facts.
EMPLOYER TAKEAWAYS
- Employers have a duty to accommodate employees with a
disability (visible or not) so consider what policies you are
seeking to apply when accommodating employees with a disability. If
those policies aren't rationally connected to work
performance, have not been updated recently, and/or no longer
accomplish a work-related purpose, then don't use them to
justify rejecting an accommodation request.
- If your company is faced with a complaint that you did not
properly accommodate an employee, review the policies you applied
in that case, and articulate how they are a bone fide occupational
requirement, so that at the earliest opportunity (usually an
application to dismiss) you can articulate why the decision not to
provide the requested accommodation was justified.
- When an employee asks for accommodations in the workplace, consider reaching out to a lawyer early since legal advice early in the process will assist in minimizing the risk of a legal proceeding later on.
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