On the obligation to make reasonable accommodation for an employee with a disability

Abstract

The UN Convention on the Rights of Persons with Disabilities (UNCRPD) features interesting labour law related aspects. The goals of this article are to reconcile horizontal human rights and contract law in the context of reasonable accommodation in working life and to establish guidelines by which to assess the obligation to make accommodation, for example in relation to the EU Employment Equality Directive. This article utilises the framework of just social practice, which makes reference to welfarism in Nordic contract law. Just social practice creates a theoretical framework in which to investigate the rights and obligations attached to reasonable accommodation in working life, because it may be argued that its basic premises correspond to the ultimate justification of the accommodation rights provided for by the UNCRPD: the idea of social inclusion. The first part of the article seeks to identify common features between the UNCRPD and contract law. It sketches the theoretical framework of just social practice, in which contract law and human rights coincide within the context of employment. The second part of the article elaborates what the process of reasonable accommodation within the framework of just social practice constitutes and introduces specific steps that are followed when the right to accommodation is in question. The article also identifies the factors that have an influence on reasonableness evaluations as being either internal or external to the contractual relationship and exemplifies how contract law principles are to be applied when assessing reasonableness. The article argues that reconciliation of the goals of private law and human rights within the framework of just social practice makes it possible to argue that contract law principles can function as a tool for social inclusion.

Introduction

The aim of this article is to present a theoretical framework which reconciles horizontal human rights and contract law in the context of reasonable accommodation in working life and to establish guidelines by which to assess the obligation to make reasonable accommodation under the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Achieving such reconciliation is crucial as the predictability and foreseeability of contractual obligations, which is an inherent goal of contract law, may be diminished due to justified interests stemming from the human rights sphere. These uncertainties may impact negatively upon both employers and employees. Employers cannot fully anticipate what is required of them within their businesses, which may in turn hinder the prospect of employees’ rights being fulfilled. ¹ Furthermore, one of the challenges that labour law faces is the pressure of deregulation. The contract law approach can be regarded as an attempt to address this challenge and to pinpoint the practical importance of integrating contract law and human rights in order to protect the vulnerable. ²

The right to reasonable accommodation in the workplace lies at the very core of the UNCRPD. Article 27, paragraph 1 which concerns work and employment states that: ‘States Parties recognize the right of persons with disabilities to work, on an equal basis with others.’ States parties are to promote the right to work, inter alia, by ensuring that reasonable accommodation is made for persons with disabilities in the workplace. ³ The Convention has mostly been analysed by human rights lawyers from the perspective of the rights it provides. ⁴ To date, private law scholars have not been motivated to analyse the rights laid down in the Convention in relation to the obligations that the effective fulfilment of these rights (for instance, in the labour law context) inevitably requires. This is the case, despite the fact that the right to reasonable accommodation in working life is in essence a deeply private law phenomenon.

Arriving at an understanding of the right to reasonable accommodation is a twofold task in which human rights and private law both play significant roles. The employee’s right to reasonable accommodation can impose an obligation on the employer to act that may emerge long after the contractual relationship between the employee and the employer first came into being. As positive rights, equal treatment and non-discrimination require the employer to take active measures and are usually not cost-free. ⁵ Thus, tension may arise between the respective rights of the employee and employer. ⁶ The employee may have a right to accommodation, but an employer has a competing right to conduct its business as well as a right to property, for example, under the European Charter of Fundamental Rights (Article 17) and the European Convention on Human Rights (Protocol 1, Article 1). This conflict represents the basic tension involved in labour law, but in a situation where human rights aspects must be addressed. ⁷ Evaluating the reasonableness of the duty to accommodate the needs of the employee in the context of an employment relationship calls for the striking of a balance between the effectiveness of such accommodation in terms of enabling the employee to continue with the employment against the interests of the employer in providing it. ⁸

Human rights and the UNCRPD do not offer tools that help assess what is reasonable and what, on the other hand, constitutes an undue burden on employers. ⁹ Whether or not an employee with disabilities in fact has a right to accommodation is a question that must be addressed in the private law sphere as the reasonableness of this potential right is assessed in that context. Although the limits are set by mandatory national legislation, the sphere of discretion and interpretation is wide. ¹⁰ We argue that within the private law sphere the right to reasonable accommodation and the obligation to make it are subject to general principles of contract law. This means that an obligation to make reasonable accommodation needs to be assessed in the light of the parties’ reasonable expectations, in particular. In sum, the article turns upside down the idea of contract law being sensitive to fundamental and human rights and argues that in order to protect rights on a horizontal basis, human rights law should be contract-law-sensitive.

To understand contract law, this article utilises the framework of just social practice. Juha Pöyhönen refers to the theory of just social practice as accentuating the role of the principle of reliance as well as ideas that relate to the conceptual understanding of contractual relations as process. ¹¹ In our view, this framework makes reference to welfarism in contract law and particularly to person-related-need-rational welfarism. ¹² It refers to needs stemming from individual circumstances as well as to the capability or incapability of a contracting party and goes beyond the idea of protection being attached to a certain social role such as consumer or employee. ¹³ In Thomas Wilhelmsson’s words, ‘in evaluating the rationality of the decision the crucial question is what effects the decision has on the concrete and real needs of the members of the society’. ¹⁴

The article explains and understands just social practice and rights and obligations stemming from employment contracts in the context of the Nordic welfare state. ¹⁵ Welfarism in Nordic contract law is closely linked to core thinking in relation to labour law doctrine. The protection of the weaker party, just distribution and substantive equality are the essence of both labour law and of welfarism in contract law. The main concepts and goals of welfarism can also be seen to coincide with certain goals of horizontal human rights that contribute to the idea of social inclusion. ¹⁶ From the perspective of just social practice, a point of departure for both human rights and private law spheres is that members of a community have obligations towards one another.

The first part of the article seeks common features between the UNCRPD and contract law. We sketch the theoretical framework of just social practice, in which contract law and human rights coincide within the context of employment. ¹⁷ The second part of the article elaborates what the process of reasonable accommodation within the framework of just social practice constitutes and introduces specific steps that must be followed when the right to accommodation is in question. It also identifies the factors that have an influence on reasonableness evaluations as being either internal or external to the contractual relationship and exemplifies how contract law principles are to be applied when assessing reasonableness. In line with the perspective chosen in this article, we locate individual labour law – which concerns individual employment relationships between employers and employees – within the private law sphere and regard it as a special field of contract law. Specific issues concerning the recruitment of new employees are excluded from the scope of this article. ¹⁸

Just social practice in contractual relationships

Understanding agency under the framework of just social practice departs from the Rawlsian conception of the equality of individuals and their freedom to contract. ¹⁹ In modern societies it is widely accepted that because parties often do not have equal bargaining powers, balancing is needed in order to achieve equality in certain relationships. The contractual fairness makes it possible to take into account both the value of freedom and the policy goal of favouring the weaker party. ²⁰ Mandatory legislation is used for this purpose and seeks to facilitate the weaker party’s contractual freedom. Mandatory legislation protecting employees and consumers offers an example of the means by which equality in contractual relations may be achieved. Labour laws that can be, and often are, conceptualised as interventions in the free markets illustrate well the intention of bringing these conceptions of fairness into the private law sphere. ²¹ In addition to this idea of equality as achieving power balance in contractual relations built on social roles, there has been a gradual shift towards also taking into consideration individual reasons that may impact upon a person’s agency and thus promote fairness as social inclusion. The impact of non-discrimination laws on horizontal relationships is one key reason for this development. ²² This inserts an additional layer of equality and fairness into contractual relations that accentuates the idea of considering individual characteristics as well as the actors’ social roles. ²³

In a similar manner to traditional contract law, UN human rights Conventions are usually based on Rawls’s conception of the equality of individuals and their rationality as a prerequisite of justice which contributes to equal contractual partnership. ²⁴ What is significant is that this approach does not take into account the diversity of individuals, but is characterised by inherently paternalistic and protective attitudes towards those who are considered to be ‘others’. ²⁵ The UNCRPD, which promotes social inclusion, departs from this tradition.

The approach offered by the framework of just social practice clarifies the coincidence of agency in the human rights and private law spheres. Just social practice recognises the idea that the structures of society and contractual environments need to be flexible in order to ensure that full agency and equal participation are possible for all. ²⁶ The framework of just social practice contains three overlapping dimensions. First, it holds that the safeguarding of agency is a common goal for contract law and human rights that promote agency as the basis of equality. Second, under this framework individual changes in a contracting party’s capabilities can be assessed. Finally, the framework pinpoints that contractual relationships are often long-term and sees them as a flexible process.

The safeguarding of agency: a common feature in contract law and the UNCRPD

Human rights and contract law both play a role in enabling agency and participation in the society. ²⁷ However, the approach is different. The Nordic welfarist approach to contract law seeks to protect agency in circumstances where the contractual relationship is unbalanced. Roger Brownsword refers, inter alia, to personal welfarism, in the context of which a contract is not a competitive activity but rather a solidaristic endeavour. Contractors have a duty to deal with one another in good faith and to actively concern themselves with one another’s welfare. ²⁸ According to Brownsword, a contract is result of a transaction in which both sides have weighed their own interests equally with those of the other party. In this sense, a contract may be viewed both as an instrument utilised in the context of a cooperative approach to doing business and as an instrument of social solidarity: the contract represents a joint venture in which each side is concerned that it genuinely furthers one another’s interests. ²⁹ In the Nordic welfarist tradition of contract law, the safeguarding of agency has been built on the idea of protection of the weaker party. At the system level, an individual’s position on the market is defined by belonging to a certain group and having a certain social role. However, the welfarist tradition makes it possible also to take into consideration individual capabilities. Wilhelmsson identifies a possibility to develop welfarism in contract law in a person-related need-rational manner. He regards the identification of the weaker contracting party in terms of their individual needs, as opposed merely to being a member of a group, as being essential. ³⁰

The UNCRPD is not based on the prohibition of discrimination, but on acceptance of diversity and human rights. ³¹ The prohibition of discrimination should be seen as only one of the means available to achieve the Convention’s objectives, which includes full and effective participation in working life as an essential aspect of achieving social inclusion. The UNCRPD recognises the systemic (societal) structures that are built upon assumptions as to what is default and normal and seeks to enable a person to have agency despite their possession of differing characteristics, which, in interaction with the structures of society, might hinder and prevent participation in social life. As a general principle under the UNCRPD, the application of the principle of equality of opportunity (Article 3) is a significant move away from a formal model of equality towards a substantive model of equality built upon flexible and inclusive social structures. ³² Functional limitations caused by disability are not considered to be individual and person-related problems.

The Convention defines a person with disabilities as a subject of rights and elaborates the following dimensions of equality: redistributive fairness, recognition without stereotyping, participation and social inclusion and accommodation of difference. ³³ Social inclusion under the Convention is aimed at, inter alia, promoting the labour rights of persons with disabilities. ³⁴ The principle of just distribution of material resources, which is inherently connected to social inclusion, is also one of the core principles that justifies labour law. Fair distribution in labour law has developed from the function of balancing bargaining powers between employers and employees towards the correction of inequalities between different groups of workers by means, for example, of equality laws. It includes, for example, decent remuneration for work and adequate social benefits. ³⁵ Therefore, redistribution by means of labour law entails the fairer redistribution of resources, power and risks between employers and workers but also among workers by reference to their personal capabilities. ³⁶

As noted above, contract law can aim to provide need-rationalism in individual circumstances and, thus, promote the agency of the disadvantaged in the private law realm. It resonates with the idea of social inclusion in the UNCRPD. It acknowledges the differences between individuals and pinpoints substantive equality and agency. An individual’s capabilities to participate in social life are the core rather than setting up a certain social role that defines the position of the weaker party. The aim is to ensure that specific obstacles to equal participation are removed in order to enable agency and guarantee fairness. Just social practice in contract law can be utilised to give effect to the rights provided for by the UNCRPD in the private law realm.

Changing capabilities of an employee

Working and the ability to work are the main contractual obligations of an employee. However, the ability to work can be affected, for example, by disability over the course of employment. The welfarist approach (weaker party protection) and human rights (non-discrimination) offer tools when the employee’s condition has significance in respect of his or her work-related capabilities.

The mandatory rules in (Finnish) labour law are a good example of Nordic welfarism and represent the idea of the protection of the weaker party. These mandatory rules impose obligations on the employer and guide the process of evaluating the employee’s work-related capabilities. The mandatory regulation guiding the process of evaluation may be relatively vague as it makes reference to the process of evaluation instead of the substantive needs of the employee. ³⁷ The effect of the relevant norms also depends on how well the mandatory regulation is integrated into the employment contract. ³⁸ There are no mandatory guidelines or milestones regarding the material extent to which an employer is obliged to support an employee’s ability to work during his or her employment (the contractual relationship). ³⁹ The mandatory rules recognise the evolving character of employment relationships, at least to some extent. They are characterised by weaker party protection and not by enabling agency. However, due to the development of equality rights and the right to non-discrimination it is necessary that they are also evaluated in relation to promoting and supporting the agency of an employee.

Unlike in the mandatory labour rules that support agency, in the UNCRPD enabling agency is not only a result but is the main approach. The key is that the legal concept of disability in the UNCRPD highlights the dynamic nature of disability and interaction between individual capabilities and the environment. The basis of this approach is laid down in the following definition contained in Article 1, paragraph 2 of the Convention: ‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’ ⁴⁰ Hence, the dynamic character of disability entails long-term impairments, which, in interaction with the environment, hinder participation.

Discrimination in working life on the basis, inter alia, of disability is prohibited under EU law. ⁴¹ The Convention serves as an interpretive tool for European instruments of non-discrimination. The case law of the ECJ well illustrates the various elements involved in defining disability. As noted in HK Danmark, the origin or cause of disability is not significant. ⁴² In FOA (the ‘Kaltoft case’), disability was defined as a dynamic and organic concept. ⁴³ Exclusion by the origin of disability would be against the very aim of the Directive, the implementation of equal treatment. ⁴⁴ The Court noted that ‘it does not appear that Directive 2000/78 is intended to cover only disabilities that are congenital or result from accidents, to the exclusion of those caused by illness’. ⁴⁵

The interaction between individual capabilities and the environment is further explored in the case of Z. In this case the Court stated that the medical condition of the woman who was the subject of the case certainly constituted a limitation resulting from physical, mental or psychological impairment, and that it was of a long-term nature. ⁴⁶ However, the Court took the view that the inability to have a child by conventional means did not prevent the woman (albeit that she was a commissioning mother) from having access to, participating in or advancing in employment. It was not in itself a condition that made it impossible to carry out her work or constituted a hindrance to the exercise of her professional activity. ⁴⁷

Long-term employment contracts

In the framework of just social practice, contracts are comprehended as relational, which means that they should be contemplated as ongoing processes. Agency must also be designated in relation to the evolving employment relationship. One must pay attention to the position of the contracting parties as agents in the context of the contract. The contractual circumstances, including interaction and the capabilities of contracting parties, will change over time and must be evaluated in relation to, for example, the tasks that are to be performed. In addition to the changing circumstances, the capabilities of the parties must be recognised and accepted as something that might alter and affect the rights and obligations of the parties. Significantly, pinpointing the nature of the employment contract as a process opens new flexible possibilities in the system of contractual discretion and the issues that affect them. ⁴⁸

An employment contract is often a model example of a contract in which the contractual rights and obligations are relational; evolving over a relatively long period of time. ⁴⁹ Pöyhönen takes the view that a contract is not finished temporarily, contextually or personally at a specific moment. Throughout the contractual relationship the parties are obliged and must be committed to working towards common goals within the limits of what is reasonable. ⁵⁰ This flexible approach is an attempt to overcome the perspective under which a specific point in time is pinpointed at which an instrument becomes valid. The specific point in time determines the rights and obligations that stem from the contract, a view that is promoted by will and reliance theories.

The traditional approach tends to recognise relevant facts from the prevailing standpoint at the point in time when the contract is concluded. The change in temporal scope opens up the time horizon over which legally meaningful assessment may occur. Extension of the temporal scope of the contract is a better option than the traditional correcting of imbalances in a contractual relationship with the help of fairness argumentation. It makes it possible to interpret contractual norms and take into consideration different kinds of contextual (external) or material (internal) viewpoints to resolve legal problems arising from changing circumstances. ⁵¹ This means that a contract can be characterised as situationally and operationally sensitive. It cannot be viewed solely as a stable area governed by established principles concerning consent, possession and liability for damages, which is how contract law is traditionally understood. To conclude, a contract and its legal consequences form part of a constantly evolving economic environment. ⁵²

The sensitivity of the interpretation of contracts places emphasis on the fact that changes occur over time throughout an employment relationship. ⁵³ The characteristics of an employment relationship may quite often call for the evaluation of changing circumstances over time. The passing of time may also impact upon the contracting parties’ obligations or their ability to fulfil them. The effect of changing circumstances can clearly be seen in a long-term employment relationship, for example, where evaluation of the conditions of employment may change as a consequence of changing circumstances. These may relate to the employer’s situation, the economic environment, the work itself or the employee’s personal skills.

Viewing a contract as a process calls for the use of anchoring tools in order to achieve legal certainty and predictability. The typical instabilities and uncertainties of contract as a process can be controlled and predictability can be created by recourse to the principles of reliance, transparency and anticipation. In the framework of just social practice these principles must be interpreted using an approach in which reasonableness is understood as the main rule. Reasonableness may take precedence over freedom of contract and such predictability that aims to confirm the stability of the market exchange. Hence, no new principles are created when shifting from one contract law theory to another, but principles must be positioned and interpreted in a new way. The goal of the framework that is applied must determine how the principles are interpreted. ⁵⁴

Accepting the idea of an employment contract relationship as a process guides us towards approaching the key issues by reference to contract law principles. Instabilities and uncertainties can be avoided in the course of the employment, and legal certainty can be achieved, by means of contract law principles. This means investigating the parties’ legitimate expectations that have been brought into existence during the course of the relationship (principle of reliance), the transparency of the parties’ actions (principle of transparency) and their ability to make provision to support the employee’s future ability to work (principle of anticipation). ⁵⁵

In order to interpret contractual obligations in changing circumstances, the aspects of the employment contract should be analysed in their temporal and material dimensions when assessing what amounts to reasonable accommodation. Contract law principles must be utilised when evaluating an employee’s right to accommodation. They are useful in assessing reasonableness and whether accommodation represents an undue burden for the employer. However, they must be interpreted bearing in mind the aim of achieving agency and social inclusion. Section 3 illustrates this issue by means of examples that show how the principles may be analysed when assessing the reasonableness of any accommodation made.

The right to reasonable accommodation in practice

The special right to reasonable accommodation that enables agency and social inclusion under the UNCRPD meets the special needs of an individual. This differs from traditional protection of the weaker party under private law, which derives, in principle, from belonging to a certain group or performing a certain role, like the role of an employee.

Accommodation rights ensure the agency of the person in question and therefore function as a tool of social inclusion, which is needed for that person to attain or maintain membership of the group labelled ‘employees’ and to enjoy the rights reserved to that group. However, the reasonableness assessment brings out the true nature of the right to accommodation. Its fulfilment requires interpretation and balancing of conflicting rights, which makes it a discretionary right.

Reasonable accommodation must be made in the workplace. The question of who has the right to reasonable accommodation must be evaluated against the conditions set within the human rights sphere under the UNCRPD. Whether such accommodation is reasonable and what the content of the right is must be answered in the private law sphere. The answer to the first question only partially answers the second – the mode of accommodation depends on the social circumstances of a particular case – since the reasonableness of making an accommodation cannot be assessed solely by reference to human rights. ⁵⁶

Steps towards the realisation of the right to accommodation

It may be that the evaluation of the right to reasonable accommodation is not required in practice because the a priori accessibility requirements are fulfilled. When this is done properly, it may no longer be necessary to accommodate an individual’s needs. ⁵⁷ Furthermore, it is also possible that the employer’s duty of care under mandatory domestic employment laws in relation to the employee’s work ability is sufficient to maintain the capability to work. ⁵⁸ Only if accessibility or work ability measures including, for example, minor adjustments to work tasks are insufficient must the right to reasonable accommodation be considered, if the employee claims it.

When deciding on the right to reasonable accommodation under the employment contract, one must go through a certain process by means of specific steps. The concept of reasonable accommodation is tightly bound up with the concept of non-discrimination as refusing to make reasonable accommodation is regarded as discrimination. ⁵⁹ Therefore, in order to specify the process and steps involved in evaluating whether reasonable accommodation has been made, it is useful to draw an analogy with the assessment of discrimination and non-discrimination in general. The steps in such an assessment can be set out in the following order:

1. establishing the ground of discrimination;

2. establishing that there is a prima facie suspicion that discrimination on that ground has occurred or is occurring;

3. evaluating the possible justified reasons for the actions in question; and

4. making a decision as to whether discrimination has or has not occurred.

Hence, assessment of the right to reasonable accommodation requires (1-2) evaluation of whether the employee is a person with disabilities under the UNCRPD, which means that she is prima facie entitled to reasonable accommodation; (3) assessing the reasonableness of the accommodation; and (4) making a decision as to whether the refusal of reasonable accommodation amounts to discrimination or not.

The whole assessment process can be described in relation to HK Danmark. In that case the ECJ stated that the evaluation of disability must be carried out prior to the evaluation of reasonable accommodation. ⁶⁰ On this basis, the reasonable accommodation assessment in respect of disability can be conducted in a corresponding manner. First, the employee’s disability and work ability are assessed (step 1). Second, given that the dynamic concept of disability is based on the idea of hindrances and obstacles, which, in interaction with the personal impairment involved, cause impediments to participation in working life, there is a requirement for accommodation being made as a remedy that would enable a person to participate fully in working life. Refusal to make such accommodation leads to an assumption that discrimination is involved (step 2). What constitutes a reasonable accommodation depends on the impairment as well as the hindrances involved. For example, a ‘disability’ might mean a state of health that allows a person to work only part-time. ⁶¹ Thus, part-time work might be considered as reasonable accommodation. ⁶² Third, the possible justifications for refusal to make accommodation are investigated, i.e. the reasonableness assessment related to accommodation is carried out (step 3). Reasonableness should be considered by the national court by assessing whether an accommodation measure represents a disproportionate burden on the employer. ⁶³ Fourth, the national court decides on whether the refusal to make accommodation is discriminatory or not (step 4).

The actual content of reasonable accommodation in any given case should be assessed by weighing the employee’s right to social inclusion/agency under human rights laws against the burden that making the accommodation involved will cause the employer. The Committee on the Rights of Persons with Disabilities has assessed the right to reasonable accommodation in working life in only one case in which the majority found no violation. In the case, the Committee stated that State parties enjoy a certain margin of appreciation when assessing the reasonableness and proportionality of accommodation measures. The courts of States parties to the Convention can evaluate facts and evidence in specific cases unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice (10.5). ⁶⁴

Reasonableness assessment: internal and external factors

The reasonableness assessment in the framework of just social practice pinpoints the special temporal aspect – the long duration of the contract. The right to reasonable accommodation is a way to ensure one contracting party’s right to non-discrimination when the burden is reasonable for the other party. Discrimination clearly cannot be justified per se, but evaluation of reasonableness calls for both parties’ interests to be taken into account. For example, section 15(2) of the Finnish Non-discrimination Act states that in assessing the reasonableness of the adjustments required, attention must also be paid to the size, financial position, nature and extent of the operations of an actor, as well as the estimated costs of the adjustments and the support available for them.

The section refers to the external factors that are most commonly looked at as part of reasonableness assessment and that are on the employer’s side. The assessment of the reasonableness of the duty to accommodate in employment relationship is, however, twofold. The issue of reasonableness must be resolved at the level of the contractual relationship and therefore evaluated as one aspect of that relationship. Hence, in addition to the external aspects, the internal aspects of a contractual relationship must be noted. ⁶⁵ This is an essential aspect of the integration of equality rights into private law.

In order to illustrate the complexity of reasonableness evaluation in the context of external and internal factors, we sketch the following example:

Employee A has worked for the same ground engineering company for ten years, mostly driving a front-end loader. Later he loses his driving licence as a result of an impairment of his personal faculties. However, the front-end loader can be driven without a driving licence in a restricted area. A is still perfectly capable of loading trucks in a quarry. He cannot drive the front-end loader from the firm to the quarry in the mornings or return it in the afternoons. The adjustment or accommodation needed in respect of A’s work tasks is the exclusion of driving tasks that require a valid driving licence. On that basis, A could continue his work at the quarry.

Hence, the external factor that would affect the obligation to make accommodation could be financial support from public authorities to which the employer is entitled, in order, for example, to adapt another employee’s work tasks to arrange the necessary transportations. ⁶⁶ However, despite these arrangements being made inside the company it may be that the client for whom the work is done, the contracting party of the employer, regards A as a safety risk and accordingly refuses to permit him to work at the quarry which calls for further accommodation in the form of reorganisation of the work tasks. ⁶⁷ This would require evaluation of whether the public support would be enough to make the needed accommodation reasonable or whether accommodation would represent an undue burden and could not be reasonably required of the employer.

However, when the contractual dimension of the duty to reasonable accommodation is properly noted, the internal aspects of the contractual relationship must be considered by balancing the relevant contract law principles. In the framework of just social practice, the principle of reliance promotes reasonableness within the contractual relationship as the main rule. The idea of trust between contracting parties lies at the core of the principle of reliance on contract law. ⁶⁸ In line with the goal of social inclusion, it requires that both parties play an active role. The parties to a contract must do their utmost to avoid issues that hinder the fulfilment of the purpose of the contract and to minimise damage to the other party. The idea of reliance resembles the view that a contract denotes long-term cooperation rather than a single and unique phenomenon that takes place between the parties. ⁶⁹

The principle of reliance refers to parties’ legitimate expectations and mutual trust. Whether A has the right to accommodation on the part of the employer should be evaluated in terms of what is reasonable in the particular situation at hand. The burden should not become undue from the employer’s viewpoint. Applying contract law principles in the assessment of an undue burden involves taking into consideration the length of the employment relationship and the extent to which this has created expectations based on trust between the parties.

Justified expectations created by a long-term employment relationship mean that the parties to the contract can expect greater flexibility and adaptivity than in a shorter-term contract in order to continue the contract. The parties are supposed to tolerate changes in their relationship. As both have worked towards common goals together for a long time, there should be more flexibility on both sides to adapt to changing circumstances. It may be that during the employment relationship, the employee has fulfilled the contractual obligations in an exceptionally loyal manner, for example, by showing extra flexibility during difficult or extraordinary circumstances. The employee may also have legitimate expectations based on the employer’s previous conduct in similar cases or due to promises the employer has made in order to influence the employee’s willingness to have his or her work ability assessed.

Application of the principles of transparency and anticipation to the example sketched above would mean that the sooner A had disclosed the deteriorating state of his health to his employer, the greater the onus on the employer to make adjustments to accommodate A’s needs. First, A’s employer might anticipate that adjustments would need to be made for A in the future. For instance, the employer might arrange business functions such a way that, for example, if another suitable position in the firm becomes vacant or a new position opens up, a new employee is not hired, but the employer makes an accommodation for an employee who has a disability by re-arranging work tasks. Second, as the employer has had the opportunity to anticipate the change in circumstances, the financial burden involved in making the necessary adjustments is smaller than might otherwise be the case. In the example given above, the employer may not be burdened with extra costs at all as the necessary accommodation could form part of ordinary business routines.

Applying contract law principles to reasonableness argumentation requires some reciprocity on a voluntary basis in order to create the grounds for accommodation. This is well illustrated by the issue of disclosure of information. Is the employee willing to disclose such personal information in advance even before invoking the right to reasonable accommodation? Anticipating the need for reasonable accommodation in working life requires that an employee provides necessary information on his or her health. For example, under section 5(1) of the Finnish Act on the Protection of Privacy in Working Life (759/2004) an employer has the right to process information concerning the employee’s state of health only if there is a justified reason and the information has been collected from the employee either personally or otherwise with the employee’s written consent. Thus, it is up to the employee as to whether to give information on their state of health and when.

Conclusions

On the one hand, the right to non-discrimination and the right to reasonable accommodation are individual human rights and as such, an inherent part of human dignity. On the other hand, the idea that a contracting party’s obligations must be predictable and foreseeable lies at the very heart of private law. As discussed above, the framework of just social practice in contract law may help bridge the gap between private law and human rights. The framework shows that contract law inherently includes elements that sufficiently promote the goal of social inclusion, which is also laid down in the UNCRPD. Hence, contract law principles can be of benefit when assessing reasonableness of an accommodation. The assessment of reasonableness within the contractual relationship is a matter of social inclusion but also a matter of the employer’s ability to provide it within the limits of what is reasonable in the context of the contractual relationship.

The predictability and reasonableness of an accommodation obligation are important from an efficiency perspective. Those who are supposed to be protected may end up paying the price collectively if the protective system is designed in such a way that it discourages employers from, for example, hiring elderly employees. ⁷⁰ Assessment of the burden imposed in particular cases is therefore of the utmost importance and the tools used to carry out this assessment must ensure that the imposition of this obligation produces consistent outcomes. ⁷¹ To conclude, this supports the idea of finding tools, such as those provided by contract law principles, to bring predictability and foreseeability to reasonableness assessment. The tools by which to achieve social inclusion within the contractual relationship in respect of the issue of reasonable accommodation may be new, but the means used to interpret it in particular cases are old.