This month, Bernard Martin, a solicitor on the Employment Team at A&L Goodbody provides practical advice for employers on reasonably accommodating employees, informed by the commentary of the Supreme Court in the Nano Nagle decision.

1. What is the duty to provide reasonable accommodation and where does it come from?
2. What does this duty apply to?
3. What exactly are "appropriate measures"?
4. What factors are relevant when considering whether complying with this obligation constitutes a disproportionate burden?
5. We have an employee with a disability returning to work, what do we need to do?
6. Do we have to redistribute a disabled employee's duties, which s/he cannot undertake even with reasonable accommodation?
7. Do we have to create a new role for a disabled employee if s/he cannot undertake the duties of her existing role?
8. Do we need to consult with the disabled employee?

The case of Marie Daly v. Nano Nagle School is somewhat of a legal saga, having commenced before the Equality Tribunal in 2011 and only recently making its way on appeal to the Supreme Court. The decision of the Court of Appeal in early 2018 was heralded as a landmark decision on the statutory duty on employers to provide disabled employees with reasonable accommodation. The decision was widely welcomed by employers, as it made clear the duty to reasonably accommodate employees was not as onerous as previously understood. However, in overturning the Court of Appeal decision, the Supreme Court has moved the dial once again, this time in favour of employees. This month, Bernard Martin, a solicitor on the Employment Team at A&L Goodbody provides practical advice for employers on reasonably accommodating employees, informed by the commentary of the Supreme Court in the Nano Nagle decision.

Q. What is the duty to provide reasonable accommodation and where does it come from?

Section 16 of the Employment Equality Acts (1998–2015) obliges employers, subject to it not being a disproportionate burden, to take appropriate measures to enable a disabled employee to undertake the duties of their position.

The section does not require employers to retain a disabled employee in a position where the employee is, despite such measures being taken, not "fully competent to undertake, and capable of undertaking" the duties of that position.

A person who has a disability is considered fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable if the employer provided reasonable accommodation, referred to in the Acts as "appropriate measures".

Q. What does this duty apply to?

An employer must take appropriate measures, where needed, to enable a person who has a disability to:

• have access to employment;
• participate or advance in employment; or
• undergo training;

unless the measures would impose a disproportionate burden on the employer.

Q. What exactly are "appropriate measures"?

Appropriate measures are effective and practical measures to adapt the employer’s place of business, patterns of working time, distribution of tasks or the provision of training or integration resources. However, it does not include anything which the disabled employee might ordinarily/reasonably provide for themselves.

Q. What factors are relevant when considering whether complying with this obligation constitutes a disproportionate burden?

When considering what would be a disproportionate burden, employers are required to take account of the:

• financial and other costs entailed;
• scale and financial resources of the employer’s business; and
• possibility of obtaining public funding or other assistance.

The Supreme Court has now made it clear that where a proposed measure is considered to be a disproportionate burden due to its cost, an employer has a duty to consider the possibility of obtaining public funding or other assistance. The Court went on to state that in this case, the duty could not be satisfied simply by making a phone call, where arguably there was misunderstanding.

Q. We have an employee with a disability returning to work, what do we need to do?

It is important that the employee is reviewed by an occupational health physician to consider their capacity to undertake the duties of their role and perhaps their fitness to return to work generally. It may also be necessary then to have an Occupational Therapist, and perhaps other medical experts, review the employee and the duties of the role to establish:

• which duties the employee is capable of undertaking;
• which duties the employee is capable of undertaking with reasonable accommodation, specifying what reasonable accommodation is required;
• which duties the employee is incapable of undertaking, even with reasonable accommodation.

It is then important that the views of the medical experts are considered thoroughly including any recommendations for reasonable accommodations.

The Labour Court has previously stated that at a minimum, an employer was required “to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive”.

The significance of medical evidence when it comes to employers making decisions on reasonable accommodations was evident in Nano Nagle, where the Supreme Court described the Occupational Therapy report obtained by the school as "one of the evidential keystones of the case". Indeed, the Supreme Court ultimately remitted the case back to the Labour Court for further consideration of this report and the evidence of the Occupational Therapist concerned, as it felt the Court's consideration of this particular aspect of the claim had been inadequate.

Q. Do we have to redistribute a disabled employee's duties, which s/he cannot undertake even with reasonable accommodation?

The answer is maybe.

The Court of Appeal in Nano Nagle distinguished between the non-core "tasks" and the core "duties" of a role, finding that employers must consider the redistribution of non-core tasks but were not required to consider redistributing core duties.

However, the Supreme Court took a different position and held that employers are also obliged to consider the redistribution of core "duties", provided doing so does not place a disproportionate burden on the employer.

What determines whether duties need to be redistributed, whether they are core duties or more tangential tasks, is whether the redistribution would place a disproportionate burden on the employer.

Q. Do we have to create a new role for a disabled employee if s/he cannot undertake the duties of her existing role?

No. The Supreme Court held that there is no requirement for an employer to create a new role for a disabled person.  Specifically, it stated that "the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee".

The more vexed question that will need to be addressed on a case by case basis is when the extent of the adjustments made by an employer to an employee's role has the effect of turning that role into a new role. Therefore, while the onus on an employer to reasonably accommodate employees is now clear, in that the employer needs to consider redistributing core tasks, what is less clear is when the extent of that duty tips the balance from the provision of reasonable accommodation to becoming a disproportionate burden. In this regard, it is also worth noting that the Supreme Court stated that "the distribution of some of the appellant's duties, in order to require her to do more of that which she could do, would not necessarily mean that she was not performing the duties of an SNA".

Q. Do we need to consult with the disabled employee?

The Supreme Court confirmed that there is no mandatory duty of consultation in each and every case. However, it also stated that a "wise employer" will provide meaningful participation to the employee. Prudent employers would be well advised to heed the Supreme Court's observations and consult with employees in practice.