Nano Nagle School v Marie Daly [2015] IEHC 785 (Noonan J, 11 December 2015)

This matter came before the High Court by way of an appeal on a point of law pursuant to section 90(1) of the Employment Equality Act 1998 (“the Act”). The appeal was brought on behalf of the Nano Nagle School (“the School”) against a determination of the Labour Court that the School had failed to take appropriate measures to accommodate Ms Daly’s disability in contravention of section 16 of the Act. The Labour Court had found for Ms Daly and had awarded her €40,000.00 in compensation. Although the School’s failure in this regard had resulted in her dismissal, Ms Daly had not made a claim of discriminatory dismissal.

Background

The Appellant is a school for children with varying degrees of physical and intellectual disabilities. Ms Daly was employed by the School as a special needs assistant (SNA). She was one of some 27 SNA’s employed by the school.  Her duties involved, inter alia, attending to the physical needs of the children attending the School. She also undertook some part-time secretarial duties for which she was paid separately. Following an accident in 2010, she was left paralysed from the waist down and requires the use of a wheelchair. The School dismissed Ms Daly claiming that it had been advised by an occupational health expert that she lacked the capacity to fully undertake the duties of an SNA. The school did not discuss any other options with Ms Daly, nor did it consider employing her on a part-time basis, or allowing her to continue with her part-time secretarial role.

Ms Daly’s case was that the School had failed in its duty, under s.16 of the Act, to make reasonable accommodation for her disability by refusing to consider reorganising the allocation of tasks amongst all of the 27 SNA’s so as to relieve her from a requirement to perform those tasks that she was incapable of performing. At all times, Ms Daly acknowledged that she could not perform all of the duties associated with her role as an SNA but she believed that she could perform many, if not most, of those tasks. She claimed that an occupational physician and an occupational therapist commissioned by the School had supported her position.

The Equality Tribunal

At first instance, the Equality Tribunal found against Ms Daly. At paragraph 6.1 of his decision the Equality Officer held:

“Having considered all the written and oral evidence presented to me, I find that the medical evidence indicates that the complainant is no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to the position to which she was recruited for, having regard to the conditions under which those duties are, or may be required to be, performed. Accordingly the provisions of Section 16(1) of the Acts applies in relation to this complainant and therefore this complaint must fail.”

The Labour Court

Ms Daly appealed the Equality Tribunal’s decision to the Labour Court pursuant to s.83 of the Act. In allowing the appeal the Labour Court held: -

1.    The duty imposed by s.16 of the Act to provide a person with a disability with reasonable accommodation must remain within the boundaries of what is reasonable and proportionate, including having regard to the financial implications involved.

2.    There is no reason to exclude in principle extending the duty of reasonable accommodation to include the redesign of a position so as to include those duties that a person with a disability can perform if that is a reasonable and proportionate means by which a person with a disability can be facilitated in exercising their right to work.

3.    Section 16(1)(b) of the Act provides that an employer is not obliged to employ or maintain a person in employment in a position the duties of which they cannot perform. If a job is modified so as to reflect a person with a disability’s abilities, they are then able to fully discharge the duties to that position as modified.

4.    If there is a difference between the provisions of s.16 of the Act and the provisions of Directive 2000/78/EC (the Framework Directive), the provisions of the Directive must take precedence.

5.    The duty to provide reasonable accommodation includes a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. A failure to adequately consider all available options on how a person with a disability can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. If all available options are not adequately considered then the employer cannot form a bona fide belief that any such options are impossible, unreasonable or disproportionate. Humphries v Westwood Fitness Club [2004] E.L.R. 296 and A Worker v An Employer [2005] E.L.R. 159 applied.

6.    The School’s refusal to allow Ms Daly return to work was based on the mistaken belief that its duty was confined to providing her with such accommodation as might enable her to undertake the full range of tasks expected from an SNA. No amount of accommodation could achieve that objective. In that respect the School construed its duty too narrowly and took a mistaken view of what the law required in the prevailing circumstances.

7.    The duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. That involves putting a number of considerations into the balance including the practicability of what may be required, the costs involved, the disruption that may be caused to the service that the employer provides and the consequences for the person with a disability of not providing the accommodation required. HK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Danmark, acting on behalf of Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S [2013] I.R.L.R. 571 considered.

8.    Where an employer reaches an honest and informed decision having considered all of the available options, the court must show a high degree of deference to that decision and should not seek to substitute its opinion on what is possible or reasonable in the particular circumstances of that employment. If, however, the employer fails to properly understand the scope of its duty or fails to adequately consider all of the options that may be available, they will have failed in their statutory duty toward the person with a disability.

Grounds of appeal to the High Court

While the Appellant School’s originating notice of appeal relied upon a large number of grounds, at the hearing of the appeal the School relied on five principal points of objection to the Labour Court’s determination, as follows: -

1.    The Labour Court had wrongly analysed the evidence of the occupational therapist who had undertaken an assessment of Ms Daly’s capabilities. It was contended that the Labour Court had overlooked the most important part of this witness’s testimony, which was to the effect that Ms Daly could not perform the duties of an SNA. In advancing that argument the School relied upon a note of the evidence taken by the solicitor for the school and on the notes of the Labour Court secretary, which had been obtained from the Labour Court on discovery. It was submitted, therefore, that the conclusions reached by the Labour Court were perverse.

2.    The Labour Court had wrongly construed s.16 of the Act so as to require an employer to restructure a job so as to allow an employee with a disability to undertake the essential duties of the restructured job rather than those of the actual job for which they had been employed.

3.    The Labour Court had misinterpreted and misapplied the recitals to Directive 2000/78/EC and had wrongly treated the recitals as having legal effect. It was further claimed that the Court had misapplied the decision of the CJEU in joined cases, HK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Danmark, acting on behalf of Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S [2013] I.R.L.R. 571, in holding that the decision is authority for the proposition that the redesign of a job comes within the concept of reasonable accommodation.

4.    The Labour Court had wrongly concluded that the School had a duty to consult with Ms Daly before relying on expert reports from the occupational therapist and on a report from an occupational physician who had made an expert assessment of her capabilities.

5.    The Labour Court had failed to give consideration to the question of whether accommodating Ms Daly would place a disproportionate burden on the School.

High Court Judgment

Approach to the appeal

Noonan J commenced his assessment of the case by considering the approach that should be taken by the High Court in an appeal on a point of law from a decision of an expert statutory tribunal, such as the Labour Court. In reliance on a line of authorities starting with that of the Supreme Court in Henry Denny and Sons v Minister for Social Welfare [1998] 1 IR 34, the judgement confirms that in such appeals the High Court should show significant curial deference to the decision of an expert statutory tribunal, such as the Labour Court. Noonan J clarified that where errors of law are found to have been made they must be corrected but that the findings of fact made by the expert tribunal should not be disturbed unless they are unsupported by any evidence or they fly in the face of common sense and reason such that no decision maker, properly directing his or her mind to the case, could have arrived at such a conclusion. Noonan J remarked that the threshold in that regard is very high.

Assessment of evidence

Turning to the School’s contention that the Labour Court had ignored the evidence of the occupational therapist, Noonan J noted that in her report this witness had concluded that Ms Daly could be employed as what she had referred to as a ‘floating SNA”. In her oral evidence to the Labour Court, the witness appeared to take a different position. In that regard, Noonan J noted that the occupational physician had similarly concluded in the first 2 of his 3 written reports that Ms Daly could return to work if she was provided with accommodation in the form of a reorganisation of duties. This witness had altered his position after the intervention of the School Principal who told him that the School would not provide accommodation of that nature.

In advancing its submissions on this point, the School had relied upon notes of the evidence taken by its solicitor and on the Court Secretary’s notes. Noonan J pointed out that the Labour Court is not obliged to record a verbatim account of the evidence given.  He went on to say that the notes relied upon went nowhere near establishing that the decision of the Labour Court was perverse. Noonan J pointed out that a very significant issue arose before the Labour Court in that there was an evident disparity between the opinion formed by the occupational physician before the intervention of the School Principal and the opinion that he expressed thereafter. A similar disparity emerged between the opinion expressed by the occupational therapist in her report and the oral evidence that she gave to the Court. The judge found that the Labour Court was obliged to resolve these disparities and it was entitled to do so in the manner in which it did.

Interpretation of s.16 of the Act

Noonan J noted that the original stance taken by the school with regard to an employer’s obligation under s.16 of the Act was that the obligation to provide reasonable accommodation only applied where to do so would leave the disabled employee in a position to perform the totality of their original job. That was the position taken by the School before the Labour Court and it maintained that position until the second day of the hearing of the High Court appeal. The School thereafter conceded that an employer may be obliged to strip out some peripheral aspects of the job.

The judge observed that if the position taken by the school was correct, it would be difficult to envisage any circumstances in which a person with a disability could be reasonably accommodated. He observed that s.16(1)(b) of the Act, literally construed and read in isolation might appear to support the position taken by the School. However, as the definition of “appropriate measures” in subsection (4) of that section includes the adaptation of both patterns of working time and distribution of tasks, section 16 as whole has to be interpreted as meaning that

“a person with a disability is, for the purposes of the Act, to be regarded as fully competent to undertake and fully capable of undertaking the duties of a given job is such a person would be so competent and capable on the distribution of tasks associated with that job being adapted by the employer.” (par. 59)

HK Danmark, acting on behalf of Ring

Referring to the decision of the CJEU in HK Danmark, acting on behalf of Ring, Noonan J pointed out that the decision of the Court of Justice was that the concept of reasonable accommodation extended to altering the hours of work of a disabled worker provided that it did not impose a disproportionate burden on the employer. He said that this must involve a consideration of relieving the worker from the obligation to perform certain tasks. The Labour Court had held that by parity of reasoning the decision in HK Danmark, acting on behalf of Ring could be extended to a consideration of whether a redistribution of tasks would impose a disproportionate burden. The judge said that he could find no fault with that reasoning.

Noonan J pointed out that the Labour Court did not decide that Ms Daly could undertake the duties of an SNA if accommodated. It merely held that the School had failed to properly consider that question because of an erroneous view that it had taken of its legal obligation. The judge held that this was a conclusion that was perfectly open to the Labour Court on the evidence before it.

Consultation

Turning to the remaining grounds of appeal, the judge considered the arguments advanced to the effect that the Labour Court was wrong in holding that the School was required to consult with Ms Daly before acting on the expert reports that it had received. He was satisfied that the position taken by the Labour Court amounted to no more than a finding that Ms Daly  should have been afforded some opportunity to make submissions on how she could be accommodated before a decision was taken to dismiss her. He said that this was not an unreasonable proposition.

Disproportionate burden

Finally, Noonan J addressed the School’s submissions that the Court had failed to consider if the requirement to redistribute tasks amongst the remaining SNA’s amount to imposing a disproportionate burden on the school. He said that this did not arise in circumstances in which the School simply had not engaged in any meaningful way with the concept of reasonable accommodation because of the erroneous interpretation that it placed on s.16 of the Act.

Conclusion re Labour Court’s Approach

In concluding his judgment, Noonan J stated that it was important to point out that the Labour Court did not decide that Ms Daly ought to have been accommodated in any particular way. Rather, the Labour Court had concluded that the school simply did not consider the options that were available. The Labour Court had pointed out that had the School done so it might legitimately have concluded that Ms Daly could not be accommodated. To illustrate this point the judge then quoted the following passages from the Labour Court’s determination: -

Had the Respondent given full and proper consideration to these possibilities it might or it might not have concluded they were viable, reasonable and proportionate in the circumstances prevailing.

He also quoted the following passage which appears at page 34 of the determination: -

Had the Respondent given full and adequate consideration to all the possible options it might or it might not have reached a different decision.  That, however, is not a matter on which the Court can speculate.

In the result Noonan J concluded that he could find no error of law in the Labour Court’s determination under appeal. He dismissed the appeal.

Full case decision:

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/86867f31d053511280257f30005c002f?OpenDocument

Significance

The judgment of the High Court in this case marks an important development in the law relating to an employer’s obligation to make reasonable accommodation under section 16 of the Act. The High Court, roundly endorsing the Labour Court’s approach, has clarified that in order to demonstrate that an employer has exhausted its obligations under section 16, it will have to adduce evidence to show, where appropriate, that it has considered the possible redistribution of the employee’s tasks. It is simply not defensible for an employer to adopt a simplistic defence to the effect that section 16 of the Act does not require an employer to continue an employee in employment who, because he or she has developed a disability, is not fully capable of undertaking the job that he or she was employed to do.