This well-known case regarding a special needs assistant at a school in Co Kerry has been considered by the Supreme Court, having previously been considered by the then Equality Tribunal, the Labour Court, the High Court and the Court of Appeal, the last of which had ruled in favour of the school and had overturned a decision of the Labour Court to find in favour of the employee and awarded €40,000.

This judgement is an important one that sets out principles involved in the requirement to consider reasonable accommodation when employees are disabled. Unfortunately for the parties, the outcome was that the case has been referred back to the Labour Court, effectively the sixth time a court will have considered their problem. (Readers will find an extensive background and case review of the Court of Appeal decision by Emily Sexton of Comyn Kelleher Tobin elsewhere on our Hub)
https://www.legal-island.ie/articles/ire/case-law/2018/feb/nano-nagle-school-appellant-v.-marie-daly-respondent-2018/

BACKGROUND AND CORE ISSUES

Marie Daly had worked at the school for some 12 years before an accident on holiday left her paralysed from the waist down and a wheelchair user. The Supreme Court judgement sets the scene thus:

The appellant, Marie Daly, began work as a special needs assistant (“SNA”) in the respondent school in the year 1998. She is also a qualified nurse. The Nano Nagle School in Killarney (“the school”) caters for children on the autistic spectrum, and those with mild to profound disabilities. In July, 2010, Ms. Daly sustained very serious injuries in an accident whilst on holiday. As a result, she was paralysed from the waist down. Since then she has had to use a wheelchair. She undertook an extensive course of rehabilitation. By the beginning of 2011, she was anxious to resume her employment. The school, as her employer, initiated an assessment process for this purpose. The job of an SNA is a challenging one, and has a significant physical aspect. Ultimately, following a process described in this judgment, the school board refused the appellant permission to return to work.

So, a very unfortunate situation for everyone concerned. From an employment law aspect, the key concern was what obligations relating to reasonable accommodations are imposed on an employer, particularly by Section 16 of the Employment Equality Act when an employee is disabled?

The Court considered some general historical background to the original Act:

"Whether Ms. Daly, an employee with a disability can be “reasonably accommodated” with what are called “appropriate measures” is a core issue arising from s.16 of the Act. The difficulty arises with the identification of what are the duties of a position? The section undoubtedly requires that tribunals, and courts, should decide what are those duties. But, even before the original 1998 Act was enacted, scholars expressed concern that the then-proposed legislation was insufficiently specific, as it lacked a clear definition of what were the “essential” and “non-essential” duties of a work-position."

And it is that issue that is at the core of this case - should an employer only have to make changes to working arrangements if they will assist the disabled employee to do the 'core duties' of a post, or is the obligation wider? The school representatives took the more narrow approach, whereas the appellant submitted that the Court of Appeal so interpreted s.16, as it now provides, so as to render it necessary for a disabled person, on reasonable accommodation, to be able to perform all of what were seen as the core duties of a position of employment. The appellant and the amicus curiae (IHREC) submitted that such an interpretation is unwarranted by the words of the section and would defeat the Act’s purpose.

SECTION 16

Section 16 of the Act deals directly with disabilities in the context of work. As amended by s.9 of the Equality Act, 2004, s.16(1) now provides that nothing in the Act is to be:

“… construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual -

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed."

The above wording led to much argument between the parties:

"Seen in isolation, these emphasised words might convey that an employer does not have to retain an individual who is no longer capable of performing the duties in that position. But the section must be read in its entirety. An important issue arises from the word “duty” or “duties”. The same word is not used throughout s.16. Later, the drafter used the word “tasks”. (See s.16(4)(b)). Do the words “duties” and “tasks” have the same meaning, or not? The Court of Appeal held that the law permitted, and required, the distribution of “tasks”, but that there was no obligation to remove from a disabled employee, or distribute to other employees, what were referred to as the “main duties”, or “essential functions” of a position. The appellant submits that the section does not contain any words such as “core duties”, or “essential functions”. Counsel for the school argues the words “tasks” and “duties” have different meanings, the first connoting peripheral features of a job; the second the central or core elements."

The judgement contains much useful discussion (and summaries) of domestic and EU directives and the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”), ratified by Ireland after the Court of Appeal's decision. The Supreme Court's decision also makes useful references to judgements of the European Court of Justice and concludes:

"... the accommodation [of] persons with disabilities are entitled to must be reasonable, but that it must not constitute a disproportionate burden on the employer, the court went on to hold that it was for a national court to assess whether a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employers."

HOW SHOULD 'REASONABLE ACCOMMODATION' REQUIREMENTS BE INTERPRETED?

The Supreme Court, by majority, summarised its findings:

"Reduced to its essentials, the interpretation issue as applied here could, at one level, be characterised as to whether s.16(1) is to be seen as subject to s.16(3), or vice versa? The terms of the section have been set out earlier. Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden."

So, the Supreme Court has ruled, reasonable accommodation is a specific duty that must be considered by an employer when dealing with a disabled employee and appropriate measures must be implemented by an employer, subject to it being a disproportionate burden. But it is not a free-standing obligation:

"This is a case brought under s.16 of the Act. The purpose of the Act is to promote equality between employed persons, and to remove discrimination connected with employment. An obligation is not free-standing, and failure of compliance will not, in itself, give rise to a right to compensation. The effect of a “failure in that obligation” must be considered within the framework of s.16 of the Act seen as a whole. Insofar as the appellant’s case might suggest there is a free-standing obligation in this situation, I must reject that proposition as a matter of law."

On the issue and interpretation of reasonable accommodation issues under S.16, the Court concluded:

"This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden”. If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or “stripped out”. But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, “fully capable of undertaking the duties” attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). 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. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position."

LABOUR COURT DETERMINATION AND RECONSIDERATION

In relation to the €40,000 award of compensation, the Supreme Court was critical of the Labour Court's lack of explanation:

"In my view, as a matter of fair procedures, parties are entitled to be provided with appropriate level of reasoning and definitions for the level of compensation. This is a protection against any accusation of an arbitrary or capricious decision-making. I do not say that the decision here comes within that category, but there should be some established, rational, connection between the level of compensation awarded, and the circumstances of the case, including the outcome."

The Supreme Court was also critical of the Labour Court for not taking into account all of the appropriate information available, specifically in relation to the funding authority and an occupational therapist.

Those matters were referred back to the Labour Court for reconsideration, now that the statutory position has been set out by the Supreme Court. As the Supreme Court concluded, referring this case to be considered for a sixth time in 8 years, "An ultimate legal question, however, is the extent to which it can be said that, even with reasonable accommodation, the appellant can return to the position of an SNA. That is what s.16(1) provides for in this type of case. If it arises, the Court will have to provide a reasoned basis for any award of compensation, having regard to the principles of rationality and proportionality, and the appellant’s employment status. The scope of the inquiry is limited to whether the appellant was, in fact, the subject of unlawful discrimination, and, if so, what was the precise nature of that discrimination?"

Majority judgement of the Supreme Court:
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/0036387fa70d0e74802584480046ab2b?OpenDocument

DISSENTING JUDGEMENT

In the dissenting judgement, and having discussed some persuasive UK case law on redeployment of disabled employees, Mr Justice Peter Charleton said:

"The requirement to redeploy does not arise under the 1998 Act in this jurisdiction. Thus such cases as cited above from the England and Wales jurisdiction would not carry the same imperative here. But even under that legislative model, not wishing to work directly with prisoners, as in Irish Prison Service v A Prison Officer [2018] ILCR Determination No EDA1837, or as in British Gas Services Ltd v McCaull [2001] IRLR 60, the necessity to have more than one operative suggests a common sense interpretation of the legislation, and not one suffused with legal nuance... Hence, properly the focus is on the work. Again, this is not to be reduced to legal disputations. A job can best be seen by looking at what is involved on the ground. Seeing that job carried out through observation, or experience of that employment, can define the nature of a post much better than any contract of employment or any paper exercise. That was the approach in this case and that approach is right. This is a practical exercise."

In relation to what constitutes reasonable accommodation and when it must be applied, the court stated again that it is a practical exercise:

"...the Act requires that every “employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability” to get to their place of work, to “to participate or advance in employment” or to obtain “training”. Those steps must be taken “unless the measures would impose a disproportionate burden on the employer.”... If the ability to be, as the Act says, “fully competent”, with “reasonable accommodation” is not there, then there is no discrimination according to the legal definition if the person cannot do the work... The test in the legislation is of full competence when reasonable accommodation is made. That test requires a plain analysis of the facts."

Dissenting judgement:
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/f7ae72032cc8434f80258448004552dc?OpenDocument