An employer’s duty to inquire arises when an employer knew or reasonably ought to have known that there was a nexus between the employee’s poor performance and a disability




In Cliff v Her Majesty the Queen in Right of Alberta (Human Services), 2021 AHRC 190, the complainant alleged that her employer, the respondent, discriminated against her in the area of employment on the grounds of mental disability and physical disability.

Background Facts

The complainant worked for the respondent as an administrative staff supervisor. Shortly after starting work, she experienced a traumatic family tragedy that led to the development of a mental disability. She required significant time away from work over a two-year period, which the respondent accommodated. The complainant’s return to work started off poorly for both parties. The complainant felt attacked and vulnerable, while the respondent felt that it was trying to support the complainant and address her concerns.

While the complainant was back at work, she struggled with the responsibilities of her role. The respondent came up with a learning plan that identified areas that required improvement and actions to assist in improvement. The complainant felt that the learning plan was disciplinary, rather than supportive.

The complainant eventually resigned, and she brought this action alleging discrimination.

The Test

The Human Rights Commission set out the following elements of the test that the complainant must prove on a balance of probabilities:
     a. she had a protected ground;
      b. she suffered an adverse impact; and
      c. the protected ground was a factor in the adverse impact (para 5).

No Adverse Impact

The Commission found that the complainant had not proved the second and third elements of the test (para 6). Although the complainant was distressed at the time of her resignation, she did not prove that she was pushed to resign or that the respondent’s conduct prior to the resignation was an adverse impact (para 8). While the complainant subjectively felt unsupported in her work prior to her resignation, there was not an objective adverse impact on the complainant. The objective circumstances included that the respondent accepted her medical notes, engaged in non-disciplinary discussions about improving the complainant’s performance, and provided her an opportunity to get advice and take time to reconsider her resignation (para 30).

Duty to Inquire if the Poor Performance was connected to the Complainant’s Disability Did Not Arise on the Facts

The respondent’s duty to inquire did not arise because of the ongoing, regular medical updates that the complainant provided (para 35).

The duty to inquire is not a standalone duty. It arises when an employer knew or reasonably ought to have known that there was a nexus between the employee’s performance and a disability. It most often arises when the complainant is unaware of the extent of or the existence of the disability itself, but the complainant’s conduct is noticeable to others as something that might be connected to a disability. It is an exception to the general principle that an employee has a duty to disclose relevant information and to participate in the accommodation process, including by requesting accommodation (para 36).

The respondent was entitled to rely on the medical information provided by the complainant. The complainant’s behaviour was not so inconsistent with the medical information provided that the duty to inquire was triggered (para 41).

April 14, 2022
Cliff v Her Majesty the Queen in Right of Alberta (Human Services), 2021 AHRC 190