In this month's First Tuesday Q&A, Jason McMenamin, Solicitor in A&L Goodbody's Employment Group, provides an update on case law concerning reasonable accommodation. 

In our October 2021 edition of First Tuesday Q&A ROI we discussed the Workplace Relations Commission (WRC) decision of Marie O’Shea v Health Services Executive (ADJ-00024740). Ms O'Shea claimed that the Health Services Executive (HSE) discriminated against her on the grounds of disability by failing to provide reasonable accommodation for her return to work following an injury. Ms O'Shea was awarded €65,000 and the WRC made an order directing the HSE to review the application of the Employment Equality Acts (in particular how to apply section 16) with a view to preparing written guidelines and training for line managers and HR specifically in the emergency services.

However, the Labour Court has overturned the above case in the recent decision of Health Services Executive v Marie O'Shea (EDA2227), after it found that the HSE was justified in relying on occupational health reports before allowing Ms O'Shea to return to her role as a paramedic.

What does the legislation say about reasonable accommodation?

Section 16(1) of the Employment Equality Acts 1998 to 2021 (EEA) sets out that that nothing in in the EEA shall 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:

• will not undertake/continue to undertake the duties attached to that position or will not accept/ continue to accept the conditions under which those duties are, or may be required to be, performed; or
• is not/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.

If the employee is not fully capable, section 16(3) EEA provides that a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (referred to as “appropriate measures” in that subsection) being provided by the person's employer. Thereby, there is a requirement on an employer to do all that is reasonable to accommodate the needs of a person who has a disability by providing for example special treatment or facilities. The employer must take appropriate measures to enable a person who has a disability to:

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

A reasonable employer will be required to demonstrate that all "appropriate measures" to facilitate an employee with a disability were taken - limited only by the extent to which such a measure would constitute a "disproportionate burden" on that employer.

In determining whether measures would impose a disproportionate burden, what is taken into account?

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

What are appropriate measures, in relation to a person with a disability?

• appropriate measures means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned.
• without prejudice to the generality of the above, includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources.
• it does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.

What did the Labour Court say?

As discussed in our October 2021 article, employers' obligations under section 16 EEA were clarified in the 2019 Supreme Court decision of Nano Nagle School v Marie Daly.

In coming to its decision in the present case, the Labour Court stated that there appeared to be two parts to the case being advanced by Ms O'Shea. Firstly, that the HSE was in breach of the EEA by reason of its failure to provide her with an alternative role as soon as she was deemed fit by occupational health to undertake light or modified duties. In making her argument, Ms O'Shea listed a number of paramedic colleagues – who like her were recovering from an injury or recuperating from an illness and which she says had been ‘accommodated’. However, the Labour Court stated that Charleton J unequivocally pointed out in his judgment in Nano Nagle that section 16 EEA places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired. Therefore, this aspect of her complaint could not be construed as one of failure on the HSE's part to make reasonable accommodation for Ms O'Shea. Rather, it could only be understood as a complaint that Ms O'Shea was treated less favourably than other employees with a different disability.

The Labour Court said that under the EEA Ms O'Shea had to first establish facts from which an inference of discrimination can be inferred before the burden of proof shifted to the HSE. Ms O'Shea was in fact offered and accepted a temporary alternative role with the HSE commencing 16 March 2020. While she did name in her oral evidence that four colleagues who had like her been placed on temporary alternative duties, she did not submit that their redeployment had occurred immediately after they had been certified unfit to perform the duties of their substantive post or within a shorter timeframe than that that applied in her case.  For that reason Ms O'Shea did not make a prima facie case that operated to shift the burden of proof with regard this first leg of her claim.

The second part of Ms O'Shea's case related to the HSE's decision not to return her to her substantive position until occupational health certified her fully fit to perform the full range of duties associated with her position. The Labour Court accepted that she had established a prima facie case with regard to this element of her complaint. However, during the period following her accident in July 2018 up until May 2020 Ms O'Shea did not countenance her return to her substantive position as a paramedic. This was because she was certified by occupational health at all times as “unfit for [normal] duty” as a consequence of her wrist injury and the complex pain syndrome associated with the injury. Ms O'Shea argued that this aspect of her claim was an alleged failure on the HSE's part to provide her with reasonable accommodation or to engage in a proper assessment of what appropriate measures could be taken to facilitate her return to her substantive job.

However, the HSE's defence to this aspect of the complaint was based on both the medical reports submitted to it by occupational health following its regular and ongoing assessments of Ms O'Shea and its understanding of the nature of the job. They placed particular weight on the fact that a paramedic must be able to perform each and every task associated with their role and that anything less, would present an unacceptable risk to the paramedic and to the public.

The HSE – relying on section 16(3)(b) EEA – submitted that it had taken relevant appropriate measures to ensure that Ms O'Shea, notwithstanding her disability, had continued access to employment. In its defence it gave the following examples of appropriate measures it applied:

• Ms O'Shea was paid sick pay at full rate, half pay and temporary rehabilitation remuneration in the aggregate sum of €29,180.13 while was unfit to work;
• fitness to return to work was regularly assessed;
• the HSE considered whether alternative duties could be given to her during the period when she was unable to complete the essential duties of her role;
• the HSE assigned her to different duties than the duties of her grade when such duties became available. When it did so, she was paid her full paramedic salary, plus premium payments and allowances, during a period when she was carrying out the duties of a telephone operator
• when she became fit enough to carry out the duties of a paramedic, the HSE engaged in a graduated return to work process that facilitated her return to full duties as a paramedic.

In coming to its decision, the Labour Court heard extensive evidence on the role of a paramedic. Having regard to that evidence the Labour Court was satisfied that an irreducible minimum requirement of the job was that a paramedic deployed on an ambulance be - fully fit, competent, and sufficiently dexterous, to be able to perform the full range of clinical interventions that a paramedic may be called upon to perform and without posing any unnecessary risk to the patient or themselves.

Therefore, a paramedic who lacked the above levels of fitness, competence or dexterity to practice would be to do precisely what MacMenamin J said an employer is not under a duty to do in Nano Nagle. In his judgment MacMenamin J said that an employer cannot be under a duty “to re-designate or create a different job to facilitate an employee” and that "the test is one of reasonableness and proportionality". Therefore, the Labour Court held that the HSE was entirely justified in relying on the occupational health reports it received on a regular basis in relation to Ms O'Shea and her ability to perform a range of essential duties inherent to her role. As soon as the occupational health reports indicated a positive improvement in her condition, the HSE engaged Ms O'Shea in a graduated programme that facilitated her return to service as a paramedic. Therefore, the HSE had rebutted any inference of discrimination that arose in relation to the second element of Ms O'Shea’s case. As a result, neither element of her case succeeded and the decision of the Adjudication Officer, in all respects, was set aside.

What are some useful takeaways for employers?

Employers should continue to be mindful of the Supreme Court's decision in Nano Nagle which:

• reiterates that an employer is under a mandatory duty to take all “appropriate measures” to ensure an employee with a disability is reasonable accommodated, unless any measure would constitute a “disproportionate burden” for the employer;
• noted 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, as this would almost inevitably impose a disproportionate burden on an employer”; and
• acknowledged that if an employee would not be able to fully undertake the duties of his/her role, even if all reasonable accommodation is made, then there is no discrimination.

Employers should also bear the following in mind:

• consider what steps, if any, the employer can take to ensure the employee can ultimately return to their previous role. For example, consider whether alternative duties could be given during the period that the employee is unable to perform essential duties of their role or to assign different duties at the employee's grade when such duties become available;
• regularly assess the employee's fitness to return to work; and
• a prudent employer will endeavour to engage and consult with the employee concerned on their return to work.