Marie Daly worked as an SNA in a special school for children with varying degrees of disability. The school has 12 teachers and 27 SNAs. 

Ms Daly commenced employment in 1998 and sustained a significant injury leaving her wheelchair bound in 2010. Ms Daly spent a number of months in the National Rehabilitation Hospital and was assessed as “fit to return to work on a phased basis”. 

The school required its own assessment by an occupational health expert. It led to a risk assessment by a Health and Safety expert to ensure Ms Daly’s “safe return to work”. Upon receipt of the risk assessment, the school sent Ms Daly back to the occupational health expert. He found the assessment inadequate and referred Ms Daly to an occupational therapist (“OT”). 

The OT found that the SNA’s role had 16 duties, 9 of which Ms Daly could complete. Because Ms Daly could not fulfil the entire role, the OT suggested that she would take on a “floating SNA” role. No such role existed in the school.

The school decided to send Ms Daly back to the occupational health expert for a third time. The day before the assessment, there was disputed evidence in the Labour Court that the school principal called the expert and either advised that the provision of that type of reasonable accommodation would be very difficult, or alternatively, that the school could not provide it. 

The occupational health expert prepared a report concluding that Ms Daly was unfit to return to work. 

Upon receipt of this report, the school principal called the National Council for Special Education and was told that they would not get approval for a “floating SNA”. No further steps were taken to investigate how they could accommodate Ms Daly. 

Ms Daly was dismissed by letter from the Board of Management advising that she was medically unfit for her position.

Labour Court Determination

The Labour Court held against the school and awarded Ms Daly €40,000. It took the following factors into consideration:

1. The principal only made one phone call to the National Council regarding the “floating SNA” role and took no further steps.

2. The principal did not consider reallocating Ms Daly’s additional duties to the other 26 SNAs in the school. There was no discussion with the other SNAs and no consultation with any Health and Safety expert to see if it could be achieved.

3. The school did not consider reallocating Ms Daly to a secretarial role formerly held by her which would have involved little or no adjustment of duties.

4. The occupational health expert changed his opinion regarding Ms Daly’s fitness to work following the telephone call with the school principal.

5. The Board of Management reached its decision without seeking any input from Ms Daly.

High Court Appeal on a Point of Law

The High Court will not interfere with the findings of Tribunals established to perform statutory tasks and functions. It will only do so if there is an identifiable error of law or unsustainable finding of fact. 

This case was based on section 16 of the Employment Equality Acts which essentially (for the purpose of this case) permits an employer to dismiss an employee where they are not capable of undertaking the duties associated with their role. 

In addition, where the employee has a disability, the employer has reasonably accommodated the employee to enable the person to have access to employment, participate and advance in employment and undergo training, unless in doing so, would impose a disproportionate burden on the employer. A “disproportionate burden” includes financial cost. 

The school submitted:

1. The Labour Court failed to take the OT’s oral evidence into account. In evidence the OT stated that she did not believe that Ms Daly could be reasonably accommodated.

2. The Labour Court interpreted Section 16 in such a way that it required the employer to reorganise and restructure the job entirely to accommodate the employee. The precedent case law includes reduction in hours to accommodate an employee, but not a reduction in duties.

3. The OT’s report was an expert report and the Labour Court was therefore wrong in holding that the school should have consulted with Ms Daly regarding its content.

4. The Labour Court failed to recognise the significant financial burden on the school to implement the reorganisation of the SNA’s role. 

In contrast, Ms Daly submitted:

1. Ms Daly could do a significant part of her duties (9 out of 16). The purpose of the Act is to adapt a job to the person, not the other way around.

2. The school did not properly consider the possibility of a floating SNA.

3. The school did not engage with Ms Daly to adapt or change the job to fit with the disability, it was “still clinging to the notion that because no amount of measures would ever enable Ms Daly to do the entire job, their obligation to pursue the matter further was discharged”. Ms Daly argued that this was a flawed interpretation of Section 16.

4. By telephoning the National Council and concluding that it was a unduly financially burdensome was not adequate to explore the actual cost. 

The High Court held:

1. The Labour Court was correct in its interpretation of section 16 in holding that the “school failed to engage with its duty to consider whether or not Ms Daly could be reasonably accommodated by the implementation of appropriate measures”.

2. It did not hold that Ms Daly could not be accommodated, but rather, “it was the failure to even consider a redistribution of [Ms Daly’s] tasks as an SNA that rendered the school in breach of section 16”.

3. Overall there was “insufficient effort” on the part of the school to comply with its statutory obligations to consider and evaluate the findings of the various experts.

4. Ms Daly should have been provided with the chance to make submissions on how she could be accommodated in the workplace before any decision to dismiss was taken.

5. The Labour Court never dealt with the issue of financial burden, because it did not arise. Its focus was on section 16 and the school’s “failure to engage in any meaningful way with the concept of reasonable accommodation”. 

The school’s appeal was dismissed. 

Legal Review

A. “Reasonable accommodation” is more than just providing an employee with the opportunity to work reduced hours. A total overhaul of the job, including a potential reassignment within an organisation should be considered. 

B. It is not a box ticking exercise to simply say that an employer has considered the measures required to adapt its premises and/or the role and cannot accommodate the employee. Active steps, including seeking the employee’s input are required to comply with the provisions set down in the Employment Equality Acts. 

C. While financial cost is a factor in assessing reasonable accommodation, it cannot be considered until after the actual “accommodation” (and how that may be achieved) is assessed. 

D. In this case, the employer took the time to engage all the relevant experts to try to comply with fair procedures. It is likely, in this writer’s opinion, that if they had taken the step of engaging with Ms Daly and seeking her input, they would have reached the same conclusion, albeit having taken such steps, they would have complied with fair procedures and due process. 

E. As a practical tip, employers should learn from the error made by the school principal in this case in telephoning the doctor the day before the medical review, to advise that the school could not accommodate Ms Daly. Under no circumstances should an employer seek to influence the view of an independent expert in their assessment of an employee.