Guidance from the Supreme Court in the ‘Nano Nagle’ Reasonable Accommodation Case

supreme court nano nagle

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

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. (Read the full decision of the Court of Appeal here).

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).(Read the High Court decision here).

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

Court of Appeal: Nano Nagle School -v- Daly [2018] IECA 11 

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.

Update: this case was heard by the Supreme Court in March, 2019 and judgment is awaited.

Update 31st July 2019-Supreme Court Overturns Court of Appeal

The Supreme Court, in a decision handed down on 31st July 2019, overturned the Court of Appeal decision in this case. You can read the full Supreme Court decision here:Nano Nagle School v Daly [2019] IESC 63

Specific matters are to be remitted to the Labour Court for further consideration.