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Landmark Supreme Court Decision on the Obligation to provide Reasonable Accommodation to Employees with Disabilities

One of the most important employment law decisions issued so far this year was the Supreme Court decision handed down a few weeks ago in the long running case of Nano Nagle School v. Marie Daly [2019] IESC 63.

The case raised very important questions around how the duty of an employer to provide reasonable accommodation to employees with disabilities should be interpreted.

The Facts:  

The Supreme Court was at pains to point out how important it was to understand the long and complex factual history of the case in order to fully understand the rationale for its Judgement.

By way of a very high level summary, however, the employee in this case was a Special Needs Assistant (“SNA”) in the Respondent school which is a school based in Killarney that caters for children on the autistic spectrum and those with mild to profound disabilities.

In July 2010 the Plaintiff sustained very serious injuries in an accident and as a result she was paralysed from the waist down. She undertook an extensive course of rehabilitation and by the beginning of 2011 was anxious to resume her duties. The school initiated an assessment process for this purpose. However, the job of an SNA is a challenging one and has a significant physical impact and ultimately, the school board refused the Plaintiff permission to return to work.

The Legal Claim:

Following the refusal to allow her back to work, the Plaintiff brought a case under the Employment Equality Acts (“the Act”) claiming that the School’s decision constituted unlawful discrimination and that the employer had failed to comply with its statutory duty to provide “reasonable accommodation” or “appropriate measures” to accommodate her disability which would have allowed her to return to work. The case was appealed a number of times and ultimately ended up before the Supreme Court who gave Judgement on 31st July.

The judgement centred around the interpretation of Section 16 of the Act which deals with the nature and extent of an employer’s obligations in certain cases including when determining the capacity of a person with a disability to do a job and the duty to provide that individual with reasonable accommodation.

What kind of tasks is an employer obliged to consider removing?

One of the key issues that had been focused on by the Court of Appeal when they gave their judgement in the case last year was the question of a distinction between core duties and tasks.

Put very simply the Court of Appeal took the view that in trying to provide an employee suffering from a disability with reasonable accommodation there was no obligation to remove from the employee, or, distribute to other employees, “main duties” or” essential functions” of the position, however, an employer could be required distribute “tasks” to other employees as part of providing reasonable accommodation.

During the Supreme Court hearing Counsel for the school, argued that the words “tasks” and “duties” have different meanings with “tasks” connoting peripheral features of a job and “duties” connoting central or core elements of the job.

The Supreme Court took the view, however, that this distinction would defeat the purpose of the Act, which is to achieve equality and that at any level, to seek to distinguish between “tasks” and “duties” would pose real problems, as to how the distinction is to be made and who should make it.

In summary the Supreme Court indicated that it found it hard to see any policy or common good reason as to why distributing or removing tasks from an employee with a disability as part of providing reasonable accommodation should be confined only to distributing or removing “non-essential” tasks.

It further indicated that if there is no real distinction to be made then between tasks and duties, there is no reason in principle, why certain work duties cannot be removed or “stripped out” as part of providing reasonable accommodation. However, it clarified that this is subject to the condition that it does not place a “disproportionate burden” on the employer and this is a very key point.

Disproportionate Burden:

The Supreme Court strongly emphasised that its conclusions should not be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. In fact the Supreme Court commented that a requirement to provide an entirely different job would almost inevitably impose a disproportionate burden on the employer.

Section 16 of the Act sets out certain specific criteria that must be taken into account in determining whether a particular measure would impose a disproportionate burden on an employer. The criteria includes the costs entailed in taking the measure, the scale and financial resources of the employer’s business and the possibility of obtaining public funding or other assistance. The possibility of obtaining public funding was a point of particular discussion in this case as the Supreme Court took the view that question of the School’s efforts in considering whether public funding could be obtained had not been properly clarified by the Labour Court.

Consultation:

Another point to mention is that the Supreme Court made a comment in its judgement in respect of the need for consultation by the employer with the employee suffering from the disability. On this point the Supreme Court stated that while it would not go so far as to say there is a mandatory duty of consultation with the employee in each and every case, a wise employer will provide meaningful participation in vindication of his or her duty under the Act.

Outcome of Supreme Court Appeal:

The Supreme Court has decided to remit the matter back down to the Labour Court for further consideration in accordance with “the totality of the evidence adduced, together with such further limited evidence as may be necessary and the law as explained in this judgement”.

The Supreme Court has confirmed that an ultimate legal question which the Labour Court will have to look at is the extent to which it can be said that even with reasonable accommodation Ms. Daly can return to the position of SNA. The Supreme Court emphasised, however, that the order it has proposed does not imply that there must be any predetermined outcome in the Labour Court’s reconsideration.

Other issues of Interest in the Case:

One issue discussed in the case was the amount the Labour Court had awarded (€40,000) when it heard the case and found in Ms. Daly’s favour previously.

Interestingly the Supreme Court took the view that the Labour Court had not made clear how or why it had arrived at this sum as being the appropriate sum of compensation in the case. The Supreme Court took the view that parties are entitled to be provided with an appropriate level of reasoning and definitions for the level of compensation awarded and that there should be some established, rational, connection between the level of compensation awarded and the circumstances of the case, including the outcome.

It will be interesting to see what kind of impact these comments by the Supreme Court will have in terms of how much detail the WRC and the Labour Court will give in their determinations going forward around the reasons as to how certain awards of compensation are arrived at.

Key Takeaways:

  1. If an employee with a disability is capable of carrying out their role so long as they are provided with certain reasonable accommodation or appropriate measures then then the employer will be obliged to provide those measures unless doing so imposes a disproportionate burden.

30th June 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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