This month’s article from the Labour/Superior Court Caselaw Review Panel was written by Deirdre Malone, Partner, Ronan Daly Jermyn.  It concerns the Supreme Court’s decision in the matter of Nano Nagle School –v- Marie Daly in relation to reasonable accommodation of a disability.  The Supreme Court has remitted the case to the Labour Court to review the evidence originally before it properly, to determine whether discrimination occurred and, if upheld, to provide a reasoned basis for any award of compensation that may be given.

Are we there yet?

The short answer is no. A cast of thousands has reviewed the Nano Nagle School –v- Marie Daly case at this stage, but we are no closer to resolution of this litigation.  The Supreme Court has now remitted the case to the Labour Court to consider two points (discussed below), however, it remains to be seen whether the case will actually trouble the Court again.

History

Most are familiar with the unfortunate events that serve as a background to the most well-known disability discrimination case in Ireland. By way of reminder, Ms Daly is employed as an SNA since 1998 with Nano Nagle school (“the School”) in Killarney.  The School caters for children on the autistic spectrum, treating those with mild to profound disabilities. In 2010, Ms Daly was involved in a road traffic accident resulting in paralysis from the waist down. She is permanently wheelchair bound.  Following significant rehabilitation in 2010/2011, she sought to return to work in 2011. Ms Daly’s occupational therapist confirmed that she was fit to return to work on a phased basis. The triggered a number of further assessments to consider Ms Daly’s ability to carry out the duties associated with her role.

Ultimately, Ms Daly was assessed by Ms Ina McGrath, an occupational therapist. Ms McGrath’s comprehensive report stated that Ms Daly could carry out 9 of the 16 duties associated with the role of an SNA. (Ms McGrath’s evidence appears to have contradicted this in the Labour Court, and much turns on this point in the Supreme Court decision.) The report recommended that Ms Daly could carry out the role of “floating SNA” (a new role for the School). The report was never shared with Ms Daly, and her views were never sought on its recommendations.

Some efforts were made to consider the possibility of funding the “floating SNA” role. The School principal contacted the Department of Education and the NCSE to find out if such funding was available. The NCSE official said that funding was provided for students with disabilities, not adults. The Board of Management subsequently issued a letter to Ms Daly refusing her request to return to work.

Ms Daly alleged discrimination on the grounds of her disability and the failure of the School to comply with its statutory duty to reasonably accommodate her disability and permit her to return to work.

Section 16 of the Employment Equality Acts

In summary, an employer has a duty to take appropriate measures to enable a person with a disability to access, participate and advance in employment, unless such measures impose a disproportionate burden on the employer.

Appropriate measures include adapting the employer’s premises or equipment, changing work patterns, and/or the distribution of tasks related to the role.

To decide whether something is a disproportionate burden, consideration is given to cost, the size and scale of the employer, and the possibility of obtaining public funding and assistance.

Five Tribunals

The case has been before the Equality Tribunal, the Labour Court, the High Court (appealed on a point of law), the Court of Appeal, and now the Supreme Court. Employers can welcome the Supreme Court’s decision providing clarity on the appropriate test to apply in order to determine what constitutes reasonable accommodation. In addition, employers will also welcome the Court’s comments regarding the requirement to provide reasoned decisions, and compensation awards from expert administrative bodies.

The Court of Appeal’s test

The Court of Appeal added a layer of confusion to the test to use to determine “appropriate measures”, specifically as regards the notion of distribution of tasks. Much emphasis was placed on the difference between a duty and a task. For illustrative purposes, one of the SNA’s duties was to “prepare and tidy [the] classroom”. The tasks associated with this duty included “bending, reaching, laying out equipment on desks”.

The Court of Appeal sought to distinguish the terms, rather than use them interchangeably. In doing so, it established a test suggesting that it was permissible to remove the non-essential functions of the job, but not strip away the core duties. The Supreme Court strongly disagreed with this new interpretation of the legislation, and the notion of “core duties” or “essential functions”.

The Supreme Court’s test

It is now clear from the Supreme Court’s judgment that the test is “one of reasonableness and proportionality”. An employer must consider all measures that could be put in place to accommodate an employee, and if such measures could reasonably accommodate an employee, the only basis for not implementing those measures, is that it would place a disproportionate burden on the employer. By way of example, the Court held that to create a new job for the employee would be a disproportionate burden.

Contact with NCSE and Consultation

In assessing what is a disproportionate burden, the Court held that the requirement to consider the possibility of public funding is a mandatory obligation on the employer. The Supreme Court has remitted the issue of the School’s consultation with the NCSE back to the Labour Court to consider its legal consequences fully.

Separately, the Court looked at the requirement to consult with the employee, particularly in light of the fact that Ms Daly was never given a chance to comment on Ms McGrath’s report. While not directing mandatory consultation, (and confirming that a lack of consultation will not automatically give rise to an award of compensation), the Court commented that a “wise employer will provide meaningful participation in vindication of his or her duty under the Act”.

In conclusion, the Supreme Court’s test for a prudent employer to utilise is as follows:

1. Consider all appropriate measures that might be utilised to reasonably accommodate an employee’s disability.
2. Consider whether implementing such measures would constitute a disproportionate burden on the employer. This includes the consideration of cost, the scale of the employer, and the possibility of public funding (a mandatory requirement).
3. Engage with the employee during the process.

Why the Labour Court (again)

The School’s submission to the Court was based on the premise that the Labour Court failed to consider the relevant evidence of Ms McGrath before reaching its decision. As mentioned above, Ms McGrath’s report noted that Ms Daly could perform 9 of the 16 duties associated with the role of SNA. In evidence, the School summarised Ms McGrath’s contradictory evidence (uncontested by Ms Daly) as follows:

1. It was not possible to accommodate Ms Daly within the School, as the level of dependency of the children in the School was too high and Ms Daly would not be able to manage.

1. Ms Daly could not work in a re-organised environment in the School, and the role could not be reorganised to accommodate Ms Daly.

1. There was no role of “floating SNA” and, even if it existed, it was not a suitable role for Ms Daly in any event.

The Supreme Court accepted that School’s submission that the Labour Court had failed to consider this this “highly relevant un-contradicted expert testimony…and had not been reflected in the Labour Court findings of fact”.  It was submitted by Counsel appearing on behalf of the School that this error was “so egregious that no reasonable administrative Tribunal could ever have come to the same conclusion when faced with the same testimony”.

In its conclusion, the Court accepted that significant and relevant evidence was not recorded or evaluated. The Court reminds us that there is a statutory duty on the Labour Court to give reasons for its decision and to outline the relevant evidence upon which its decision is based.

As such, it has also remitted the question of Ms McGrath’s evidence back to the Labour Court for it to consider its legal consequences.

It has done so on the basis that the Courts recognise that they should be slow to interfere with the decision of any tribunal or other decision-making body unless the decision was based on an “identifiable error of law or unsustainable finding of fact”. However, the test goes beyond this to include, amongst other things, where the determination fails to comply with a statutory duty. The Supreme Court held that the Labour Court failed to meet that duty in this case.

Compensation

Further criticism was directed to the Labour Court in its, seemingly arbitrary, award of €40,000 to Ms Daly. The Court comments that the reasoning provided in the Labour Court’s decision goes from “outcome” to “redress, five lines later, without any explanation as to how this particular compensation sum was arrived at.” The Labour Court is reminded to provide some connection between the compensation and the circumstances of the particular case.

This is a welcome development for employers, who may now properly consider how the Court has determined an award and provide an opportunity to reflect on the merits of appeal.

What is the Labour Court likely to do?

It is difficult to anticipate how the Labour Court will determine the impact of the process undertaken with the NCSE, but more importantly how it will evaluate Ms McGrath’s evidence to the effect that Ms Daly cannot be accommodated in an SNA role in the School. One wonders if the Labour Court will ever have an opportunity to consider the legal consequences.

On balance, if it is accepted that Ms McGrath’s oral testimony confirmed that Ms Daly could not be accommodated with any appropriate measures so as to render her capable of doing the job, one wonders how the case will proceed. This evidence was uncontested, and the Supreme Court has directed that no new issues can be introduced by either side.

It remains to be seen how this never-ending story will conclude. Only time will tell.