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Clarification on Employers’ obligation

In this case the Court of Appeal overturned the decision of the High Court and vacated the award of €40,000 compensation to Ms Daly, a disabled Special Needs Assistant (“SNA”) who had been dismissed on incapacity grounds. After her accident, the occupational therapist determined that Ms. Daly could undertake, wholly or partly, nine of the sixteen tasks required of an SNA. It was put forward that the duties Ms. Daly was unable to perform should be delegated to other staff members or the School should allow for the position of a floating SNA in order to accommodate her.

The School sought funding for such position but funding was unattainable. Subsequently, Ms. Daly was dismissed on the ground of capability. The Court of Appeal held that the statutory obligation is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. An employer is under no obligation to create a new role in order to comply with this provision, although they must demonstrate adequate consideration and reasonableness on their part. A key point which arose was whether Ms Daly had to be capable of only some of the tasks required of a SNA or all of the tasks required.

The Court of Appeal stated:
“Adjustment to access and workplace hours and tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in section 16(1) must be respected.”

This case supports the proposition that where an employee can no longer carry out tasks fundamental to their role this may be grounds for dismissal and there is no obligation on the employer to create a new role. However, all such decisions must be based on experts reports and on the facts of the case.

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For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580
27th February 2018

Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18
www.aocsolicitors.ie

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