June 29, 2022

Volume XII, Number 180

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Animal magic – Assistance animals at work (UK)

So you’ve seen the news stories about the chap suing Sainsburys for not letting him in with his “assistance cat”, yes?  He suffers from severe autism and unless accompanied by his cat, finds the noise, lights and crowds within the store impossible to manage.  You would allow in a guide dog, he says, so what’s the difference? Excluding my cat is effectively excluding me by reason of my mental health condition, and that is unlawful discrimination.  A prime example of silly-season news, you might think initially, but let us all take a deep breath and consider what might be the ramifications for the workplace if he succeeds. 

That would establish the principle, though nothing more, that permitting animals onto working premises where they would not normally be allowed could be a reasonable adjustment for disability in some situations. I confess to a degree of concern.  Some decades ago I advised on one of the first requests of a blind employee to bring his guide dog into his City offices.  His colleagues were fine with it and the question of how the employer would deal with the competing demands of a necessary dog on the one hand and raging allergies on the other mercifully did not arise (though look out for it in future).  Sadly this early experiment in canine inclusion came to a sudden end when the dog developed reportedly unstoppable flatulence and “offensive working environment” took on a whole new meaning.

Let us break down the issue a little.  First, the employee will need to be disabled for the reasonable adjustment regime to apply at all.  Blindness is obvious and measureable (you either qualify for a guide dog or you don’t) but the sort of mental health issue which might make a support animal a reasonable adjustment is much less so, and potentially less likely to be the subject of any formal diagnosis. Then there is the question of need – an individual may much prefer to be in the company of his cat or dog or comfort gnu, but does it really put him at a substantial disadvantage not to have it there when undertaking normal day to day activities in the workplace? 

It is hard to see an employer really wishing to challenge either proposition in the ordinary course of an employee’s work (or being able to do so safely in any case).  However, if it does not, then by default the employee’s four-legged companion becomes an adjustment requiring to be considered, with the burden effectively on the employer to show why not allowing a possibly-but-not-necessary disabled employee to bring his possibly-but-not-necessarily vital assistance animal to work is justified.

What might make such a refusal justifiable?  Health and safety considerations for a start – you can obviously forget about bringing your support cat into a workplace kitchen or machine room or doctor’s surgery, for example, but what about the average office?  Then maybe look at the possible reaction of other employees. Though it is in the nature of the employer’s duty to make reasonable adjustments that other employees may be slightly prejudiced or inconvenienced, that is unlikely to include setting off allergies or phobias or subjecting them to unnecessary smells, fleas or noise. Or indeed the reaction of other employees’ animals on the premises at the same time — who is liable for the resulting trauma if your assistance cat eats my emotional support budgie one day, whether or not in the canteen?

In addition, there is the question of training.  A guide dog is clearly trained to within an inch of its life – it has a formally recognised qualification, if you like – and so is probably a reasonably safe bet.  But can you ever really say that you have trained a cat to the point where it no longer wishes to act like a cat and can be guaranteed not to explode into sudden claws-bared violence or just wander off when it loses interest in you?  However well-trained is your normally docile domestic dog, even, there is still sometimes a point where it reverts without notice to being a dog, either menacing your colleagues without reason or just failing to contain its excitement over your new stair-carpet.

Justification is also a question of proportionality.  A request to bring an assistance animal to work on a full time basis is a much tougher proposition for an employer than the employee seeking the reassurance of its company just over the particularly stressful single hour of a disciplinary or grievance meeting.  After all, if it would be a reasonable adjustment to allow a disabled employee the support of a companion outside the statutory minimum colleague or union representative, which it could well be, then why not the equally calming presence of his support hamster?  Keep in mind that the question for reasonable adjustment purposes is whether the animal helps the employee overcome the disadvantages implicit in his mental health condition.  That question is probably unaffected by whether the animal plays any active part in the proceedings itself.  A guide dog is the employee’s eyes, a proper service animal, but in terms of benefit to the employee and the issue of substantial disadvantage if it is not allowed in, it does not seem immediately apparent that there is an easy distinction between that and a cat or other creature which doesn’t actually do anything but instead just absorbs the employee’s otherwise debilitating stress or anxiety. In other words, whether the animal is formally trained to an officially-approved level for therapeutic or support purposes may be relevant but it seems unlikely to be determinative. Whether it can be shown to have been trained to behave nicely in issues of hygiene and conduct will matter much more.

The decision in the Sainsburys case will be well worth looking out for. It is likely to contain some useful guidance for employer decision-making. However, employers should keep in mind that all the statutory machinery creating the rights and obligations which might legitimise a request to bring an animal to the workplace is already in existence.  That case will not change the black-and-white law, therefore, but it may give employees with relevant mental health complaints some new ideas as to their rights.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 173
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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