Duty to Accommodate: How Important Is the Procedure?
Procedure is very important in the duty to accommodate, but there is no independent procedural duty that an employer must meet. That was the recent ruling of the B.C. Supreme Court in answer to a Human Rights Tribunal decision to the contrary.
The court rejected the holding of the B.C. Human Rights Tribunal that an employer could be liable for not treating an employee “fairly, and with due respect for his dignity, throughout the accommodation process” regardless of the outcome of the substantive inquiry. The court was clear: Both the procedure of the accommodation efforts and the final results are considered, but the sole question is whether the employer could accommodate without experiencing undue hardship.
This ruling trumps earlier rulings in B.C. where employers were found to have been right in deciding against accommodation, but wrong in how they went about it.
But there is a danger in overstating the effect of this decision. Procedure remains important. A good and comprehensive procedure is crucial to satisfying adjudicators that alternatives have been considered and nothing short of undue hardship is available. A respectful procedure, including active involvement of the employee (and the union, if any), is preferred and less likely to result in unfavourable findings, even if a procedural shortcoming itself is not a breach of the duty to accommodate.
[Emergency Health Services Commission v. Cassidy, 2011 BCSC 1003]
accommodation duty to accommodate procedure undue hardship