By Raquel Chisholm, CAE
Courts and Arbitrators Have Sought to Strike a Balance between family and work
All employees who have children will, at some point, experience a conflict between their work-related obligations and their family-related demands. While “family status” is recognized as a protected ground under most provincial human rights laws, as well as the Canadian Human Rights Act, there has been a degree of uncertainty around the extent to which employers are required to accommodate employees’ family-related needs, whether by revising work schedules or being flexible in applying other work rules or policies.
Two recent Federal Court of Appeal decisions have made it clear that employers must be open to considering such requests based on an employee’s parental obligations and, where required, may need to provide accommodation. Employers can take some comfort in the fact that these decisions seek to balance the interests of employers and employees. The court has made it clear that there are limits to what an employee is legally entitled to expect from his or her employer.
The Johnstone and Seeley Cases
The two cases considered by the Federal Court of Appeal both involved employees who were the parents of young children. Both employee ran into difficulties making childcare arrangements to meet the demands of their employers and requested some accommodation as a result. In Johnstone, an employee who worked for the Canada Border Services Agency requested a change in her shift schedule (24-hour rotational shift). In Seeley, an employee of the Canadian National Railway requested to be exempted from the requirement to relocate from Jasper, Alberta to Vancouver due to a labour shortage. When their accommodation requests were denied, both employees filed complaints with the Canadian Human Rights Tribunal alleging that their employer’s refusal to accommodate them amounted to discrimination on the basis of “family status”. In both cases, the Tribunal found the employer’s conduct to be discriminatory, upholding the employees’ complaints.
The Federal Court of Appeal upheld the Tribunal’s rulings in both cases, confirming that a failure by an employer to accommodate an employee on the basis of “family status” constitutes discrimination within the meaning of the Canadian Human Rights Act.
What an Employee Must Demonstrate – the “Johnstone criteria”
Prior to these two recent Federal Court of Appeal decisions, there had been disagreement in the decided cases as to the threshold required to make out a claim of discrimination on the basis of family status. According to the Federal Court of Appeal, an employee who is asking to be accommodated on the basis of their family-related needs must demonstrate the following:
The Federal Court of Appeal has confirmed that the types of parental obligations that must be accommodated are those that are essential and engage the individual’s legal responsibility. The protection of human rights legislation is not extended to less substantial obligations arising from personal family choices. Similarly, the decisions make it clear that the employee must make reasonable attempts to self-accommodate by exploring alternative solutions before seeking an accommodation from their employer.
The Johnstone Criteria Applied
Despite being a decision of the Federal Court of Appeal, the Johnstone criteria have been applied in a number of recent court, arbitral and human rights tribunal decisions under different human rights legislation across the country. In order to understand how the Johnstone “test” is to be applied, we have summarized the facts and findings in some of these case
What Employers Must Do
The recent decisions of the Federal Court of Appeal in Johnstone and Seeley make it clear that employers across Canada are required to consider all employee requests for accommodation based on childcare needs. Requests must be considered on a case-by-case, individual basis, taking into account the employee’s specific circumstances and any efforts the parent/employee has made to seek out alternative solutions. Whether or not some form of accommodation must be granted will depend upon a number of factors, including the size of the employer and the extent to which the nature of the workplace allows for flexibility.
It is advisable that employers adopt clear policies that set out how such requests will be addressed and that ensure that all requests will be dealt with in a consistent manner.
More than anything, if an employer’s response to such a request is challenged, it will be important for employers to be able to demonstrate a willingness to be flexible and to examine potential avenues for assisting employees whose circumstances warrant it.
PULL QUOTES
Employers across Canada are required to consider all employee requests for accommodation based on childcare needs.
The types of parental obligations that must be accommodated are those that are essential and engage the individual’s legal responsibility.