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  IESC 63