How Far Must the Employer Go With Appropriate Measures to Avoid Disability Discrimination? Court of Appeal Decides in Nano Nagle Case

disability discrimination

The Court of Appeal issued an interesting and important decision last week in relation to how far an employer must go to make reasonable accommodation and take appropriate measures to facilitate an employee with a disability.

A special needs assistant in a school, Nano Nagle School, since 1998 suffered horrific injuries in a road traffic accident in 2010. She was anxious to return to her old role in the school in 2011 but the employer was concerned about her ability to discharge her duties.

Occupational therapist report

An occupational therapist report was commissioned and this found that Ms Daly was capable of undertaking 9 out of 16 tasks required of an SNA. On foot of this report, and concluding that she would not be able to fulfill her role as an SNA now or in the future, the school refused to allow her to resume her position.

Equality tribunal

Ms Daly brought a claim to the Equality Tribunal on the basis that the school had failed to make reasonable accommodation, and take ‘appropriate measures’, for her return to work. This is a legal requirement pursuant to the Employment Equality acts, 1998 to 2015; in particular, section 16 (3) and (4) states that

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; ]

Ms Daly lost her case at the Equality Tribunal and appealed to the Labour Court, and the Labour Court found in her favour as it held that the employer had failed to make reasonable accommodation for her return to work.

High Court

The employer then appealed this decision to the High Court and the High Court, too, found in favour of Ms Daly. It found that the ‘appropriate measures’ referred to in section 16 (4) above did not require Ms Daly to be able to discharge all the duties associated with her role as an SNA as it obliged the employer to make changes to patterns of work and working time to accommodate her.

The employer then appealed this decision to the Court of Appeal who issued its decision last week (on 31st January, 2018).

Court of Appeal

The Court of Appeal found that the Labour Court and High Court did not place enough weight on the health and safety concerns arising from Ms daly’s inability to provide hands on intervention in the class. It also found that the Labour Court had failed to have sufficient regard for the efforts of the school to engage Ms Daly as a ‘floating SNA’ when the school had attempted to obtain funding for such role, but was refused by the relevant funding body.

The Court of Appeal also held:

The point is a simple one: the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting. It is not a matter of review of process but of practical compliance. If reasonable adjustments cannot be made, as objectively evaluated the fact that the process of decision is flawed does not avail the employee.

The Court of Appeal also considered the significance of Ms Daly being able to do some, but not all, tasks required of a SNA. It 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.”

You will note that the Court of Appeal found that reasonable accommodation and ‘appropriate measures’, as required by the Employment Equality Acts, does not require the creation of a new position. Rather, the Court of Appeal found that

The section requires full competence as to tasks that are the essence of the position

Takeaway for employers

The employer needs, as always, to act reasonably and obtain appropriate professional reports. He also needs to see whether he can distribute non essential tasks as part of his taking ‘appropriate measures’ to accommodate the employee.

However, it is reasonable for him to expect the employee to be competent as to the tasks which are the essence of the position, and if this is not the case then he may be justified in terminating the employment on the grounds of incapacity.

Supreme Court Appeal

At the time of writing (29th September, 2018) this case is under appeal to the Supreme Court.