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13 November 2019
A recent Supreme Court decision clarifies the legal principles to be applied to the question of which measures of reasonable accommodation an employer should consider to enable disabled employees to participate in the workforce.
The general position under Irish law (the Employment Equality Acts) is that employers must make certain reasonable adjustments to the workplace to allow individuals with a disability to carry out their role. This duty to provide reasonable accommodation requires employers to take appropriate measures to enable an individual with a disability to access, participate in and undergo training for their employment, unless it imposes a disproportionate burden on the employer. However, the Employment Equality Acts do not oblige employers to recruit, promote, retain or provide training to an individual who "is not capable of undertaking the duties attached to that position". Employers are also not required to create a new position for someone who cannot perform a particular role.
Just how far this duty extends has been the subject of judicial analysis in recent years, culminating in the Supreme Court decision in the long-running case Nano Nagle School v Daly.(1)
Ms Daly was a special needs assistant at the Nano Nagle School. After suffering an accident in 2010, she underwent a period of rehabilitation and then engaged with the school about her return to the role. The school ultimately refused permission for her to return to work in 2011. This decision was made following an assessment by an occupational therapist and two separate risk assessments relating to Daly's working environment. The occupational therapist's assessment determined that Daly could perform nine of the 16 tasks required of her and, based on this assessment, the school concluded that she was no longer fit to perform her role as a special needs assistant. The school further decided that there were no appropriate measures of reasonable accommodation that could be implemented to facilitate Daly's return to the role.
Daly disputed this finding and initially referred her complaint to the Equality Tribunal in 2013. The equality officer agreed with the school's decision and held that it had fulfilled its obligation to consider what reasonable accommodations could be implemented before reaching its decision.
The Labour Court reversed the decision, holding that the school had failed to comply with its reasonable accommodation obligations under the Employment Equality Acts. Although Daly was severely limited in the number of tasks that she could perform, the school had been obliged to consider whether the work could be reorganised and the tasks could be redistributed among the other special needs assistants. The court also noted that the school had not consulted with Daly in reaching its decision that she was no longer fit to work. Daly was awarded €40,000 as compensation, and this decision was upheld in the High Court on appeal.
The Court of Appeal reversed the High Court's decision and found that the school had fulfilled its duty to provide reasonable accommodation under the Employment Equality Acts. The Court of Appeal applied a narrower interpretation of employers' obligations under the Employment Equality Acts. It found that while employers may need to consider the redistribution of non-essential tasks, their obligations under the Employment Equality Acts cannot be widened to include consideration of a redistribution of the essential functions or core duties of an employee's role.
Daly appealed the Court of Appeal decision. Both she and the Irish Human Rights Equality Commission (IHREC) (which was not party to the litigation but acted as an interested party) submitted that the decision introduced significant qualifications to employers' obligation to provide reasonable accommodation to enable a disabled employee to participate in the workplace.
The key issue for the Supreme Court to determine on appeal was whether the obligation to provide reasonable accommodation was subject to the limitation that employers need not keep individuals in a role if they can no longer undertake the duties of that role.
The Supreme Court noted that the terms 'essential function' and 'core duties' as referred to in the Court of Appeal decision do not appear in the Employment Equality Acts, and that if it was the legislature's intention to create such categories of duties, it would have been simple to do so. The Supreme Court rejected the interpretation adopted by the Court of Appeal and held that the relevant provisions of the Employment Equality Acts could not be interpreted to create an artificial distinction between essential duties and non-essential tasks when determining what reasonable accommodation could be provided. The Supreme Court held that this interpretation could not have been intended by the legislators and agreed with Daly and the IHREC that the Court of Appeal's approach appeared to insert additional wording into the Employment Equality Acts.
The Supreme Court noted that the mandatory primary duty of employers, as set out in Section 16(3) of the Employment Equality Acts, is to:
take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, participate and advance in employment and undergo training unless the measures would impose a disproportionate burden.
'Appropriate measures' are defined under the Employment Equality Acts as "effective and practical measures where needed in a particular place to adapt the employer's place of business, including… the distribution of tasks". The Supreme Court confirmed that the only limitation that can be placed on this duty is one of proportionality (ie, do the measures proposed impose a disproportionate burden on the employer?). This duty cannot be limited by a consideration of whether the appropriate measures involve a redistribution of essential or non-essential duties of the role.
The Supreme Court stated that it failed to see any policy or common good reason to confine the distribution of tasks to non-essential ones. It held that the phrase 'distribution of tasks' could not be interpreted to allow employers to arbitrarily classify certain aspects of a role as 'tasks' and others as 'essential duties'.
The main outcome of this decision is the confirmation that employers must, in appropriate cases, consider the redistribution of both non-essential tasks and essential duties when looking at what reasonable accommodation can be provided to employees under the Employment Equality Acts.
There are a number of issues arising from this:
The Supreme Court decision confirms the statutory duty of tribunals, such as the Labour Court, to provide a decision based on legal principles by reference to the evidence before it and provide detailed reasoning for any compensation awards. As a result, this decision may help employers and their legal advisers to challenge what they view as unreasonable decisions and awards in future.
Following this decision, employers seeking to comply with their obligations under the Employment Equality Acts should take the following steps:
While the decision provides welcome guidance on the applicable principles, employers must consider that what constitutes 'reasonable accommodation' in any given case will depend on the facts, guided by the reasonableness and proportionality of any appropriate measures proposed.
For further information on this topic please contact Audrey Whyte at Lewis Silkin Ireland by telephone (+353 1566 9876) or email (firstname.lastname@example.org). The Lewis Silkin Ireland website can be accessed at www.lewissilkin.com/en/ireland.
(1) Nano Nagle School v Daly – judgment available here.
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