The recent Supreme Court decision in the ‘Nano Nagle’ is worth a closer look by both employers and employees who are concerned with what is expected by way of ‘reasonable accommodation’ for an employee with a disability.
This obligation on an employer to provide ‘reasonable accommodation’ to an employee is set out in section 16 of the Employment Equality Act 1998.
Section 16 of the act provides, inter alia,
F33 [ (3) ( a ) For the purposes of this Act 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 (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.
( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer ’s business, and
(iii) the possibility of obtaining public funding or other assistance.]
(4) In subsection (3)—
F34 [ ‘appropriate measures ’ , in relation to a person with a disability —
( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned,
( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; ]
In overturning the Court of Appeal decision in the case the Supreme Court held that there was no reason why providing reasonable accommodation should not involve a redistribution of duties in the workplace, provided this did not place a disproportionate burden on the employer. In making this finding the Supreme Court held that it was not enough for the employer to merely divide up the job between essential duties and non-essential tasks, as the Court of Appeal had decided.
You will note from section 16 above that there is a non-exhaustive list set out in the Employment Equality Act 1998 which includes ‘the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources’.
This Supreme Court decision goes a step further in placing an obligation on the employer.
It has done so by suggesting that the employer must look not only at a redistribution of the tasks of the role but must look at a redistribution of the essential duties and functions of the employee’s job. The Supreme Court arrived at this finding on the basis that the Act in question obliges the employer to consider all appropriate measures to provide reasonable accommodation provided the cost of doing so would not be disproportionate.
The Supreme Court held, in essence, that the ‘test is one of reasonableness and proportionality’ but there was an obligation on the employer to explore whether public funding would be available to assist with the provision of reasonable accommodation.
As for consulting with the employee the Court of Appeal held that there was no obligation for employee participation in the process. The Supreme Court on the other hand held that while there was no statutory obligation to consult with the employee it made sense and would be sensible for the employer to do so.
The Court also reaffirmed the long held position that the employer was not obliged to create a different job for the affected employee.
Rap on the knuckles for the Labour Court
The Supreme Court also gave a slight rap on the knuckles to the Labour Court by finding that it had failed in its duty to consider all relevant evidence in the case and failed to provide reasons for its conclusions based on the evidence and sent the case back to the Labour Court for further consideration on specific points.
The Court also criticised the Labour Court for failing to give any reason for the level of compensation it had awarded on the grounds that fair procedures would dictate that parties are entitled to know the reasoning behind the level of an award.
Read the Supreme Court decision here: Nano Nagle School v Daly [2019] IESC 63
Takeaway from the Supreme Court decision
The significant sections of the Supreme Court decision in this case are, in my view, paragraphs 84 and 89 of the decision.
Paragraph 84
Here is a section of paragraph 84:
Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception..
Here is the premise to which the above section of the Supreme Court decision refers:
16.—(1) Nothing in this Act 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—
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, 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.
Paragraph 89
Here is paragraph 89 in its entirety:
This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden”.
If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or “stripped out”. But this is subject to the condition it does not place a disproportionate burden on the employer.
But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, “fully capable of undertaking the duties” attached to the position.
But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are nonessential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to redesignate or create a different job to facilitate an employee.
It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position.
Conclusion
It appears from the Supreme Court decision that whilst the employer is obliged to make reasonable accommodation for the employee this obligation is restricted to deciding what can be done to allow the employee do the particular job-that is, the position.
The obligation does not oblige the employer to create a new position.