Adapting work to the worker
| DOI | 10.1177/1358229118788459 |
| Date | 01 June 2018 |
| Published date | 01 June 2018 |
| Subject Matter | Articles |
Article
Adapting work to the
worker: The evolving
EU legal framework
on accommodating
worker diversity
Mark Bell
Abstract
The changing profile of the European workforce creates pressure to adapt the working
environment in order to accommodate worker diversity, such as that related to dis-
ability, religious practice or caring responsibilities. There is an ongoing debate within
equality law on the extent to which law should require employers to provide such
accommodation. This article examines the rationales that justify legal intervention and
maps out various ways in which European Union legislation already requires employers
to accommodate worker diversity. It identifies three types of accommodation duty:
protective, substantive and procedural. The article argues that the debate can be
enhanced by looking beyond the confines of equality law and drawing connections with a
wider agenda for labour market reform. A better understanding of the different types of
accommodation duty helps to expand the debate beyond a narrow focus on whether the
duty of reasonable accommodation for workers with disabilities should be extended to
other discrimination grounds.
Keywords
diversity, reasonable accommodation, equality, disability, work-life balance
Trinity College Dublin, The University of Dublin, Belfield, Dublin, Ireland
Corresponding author:
Mark Bell, Trinity College Dublin, The University of Dublin, Belfield, Dublin 4, Ireland.
Email: mark.bell@tcd.ie
International Journalof
Discrimination and theLaw
2018, Vol. 18(2-3) 124–143
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/1358229118788459
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Introduction
For many employers, managing a diverse workforce is an everyday reality. During recent
decades, the composition of the European Union (EU) labour market has changed
significantly. Higher proportions of women and older people are participating in employ-
ment.
1
The effects of migration, both in the past and in the present day, are increasing
ethnic and religious diversity in many EU Member States.
2
At times, these changes in the
profile of the workforce pose challenges to the established ways in which work has been
organized. A culture of long and unpredictable working hours is difficult to reconcile
with caring responsibilities. Workplace policies on dress and personal appearance may
conflict with how some workers manifest their religious beliefs. Many employers are
likely to encounter situations where a worker asks for a temporary or permanent adjust-
ment to the organization of work or some aspect of the working environment in order to
accommodate their personal circumstances.
In EU law, there is a duty on employers to provide reasonable accommodation for
persons with disabilities,
3
but other discrimination grounds are omitt ed. In contrast,
some jurisdictions have duties of accommodation that apply to other grounds, such as
religion in the United States,
4
while in Canada, there is a general duty of reasonable
accommodation.
5
Unsurprisingly, this has spawned an active and growing debate on
whether EU law should expand the disability duty to other grounds.
6
This article argues that the options for legal reform are more refined than a simple
question of whether or not to extend the disability duty to some or all discrimination
grounds. It identifies several EU law instruments that already place employers under an
obligation to accommodate the diversity of their workforce in a variety of ways. The
term ‘accommodation’ is used in its broadest sense to encompass those situations where
the employer is required, or encouraged, to make changes to the organization of work
(e.g. working time and allocation of job tasks) and the working environment (e.g. dress
codes), in connection with the needs of an individual worker. The article begins by
reflecting on the justifications that underpin this evolution in the legal duties of employ-
ers, identifying rationales within and beyond the arena of equality law. It then examines
those legal instruments where accommodation duties can be found. This reveals the
different form that these duties take; the article identifies a difference between protec-
tive, substantive and procedural duties. The article contends that understanding the wider
rationales for accommodating worker diversity, together with an appreciation of the
variety of ways in which law can be used, facilitates a more nuanced conversation on
the options for future legal reform.
Rationales for accommodating worker diversity
Before examining in more detail the current provisions of EU law, this section reflects on
the rationales that underpin the growth of worker accommodation duties in EU employ-
ment law. Given the constraints of space, this section can only identify some of the
principal reasons that help to explain this trajector y. While acknowledging that this
limits the depth of the analysis, even a brief review is valuable in placing the legislative
provisions in a broader context. In particular, this section draws attention to the
Bell 125
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