The Supreme Court’s recent decision in the Nano Nagle case has been the subject of significant commentary. In overturning the decision of the Court of Appeal, the Supreme Court decided that the assessment of reasonable accommodation does not just involve distinguishing between essential duties and non-essential tasks.
The Court considered there is no reason, in principle, why reasonable accommodation should not involve the redistribution of duties subject to the condition that this would not place a “disproportionate burden” on the employer. As such, there is an obligation on an employer to consider whether this would be the case before it can refuse to provide such accommodation.
The case has been sent back to the Labour Court for hearing so the eventual outcome is still awaited. In the meantime, the Supreme Court’s decision provides useful guidance for employers and tribunals when assessing the extent of the obligation to provide reasonable accommodation under section 16 of the Employment Equality Acts.
Duties of an employer
Section 16 of the Employment Equality Acts requires an employer to take appropriate measures to facilitate persons with disabilities in accessing and participating in employment unless those measures would impose a disproportionate burden on the employer. The Act provides non-exhaustive examples of “appropriate measures” which include the adaptation of premises and equipment, patterns of working time, the distribution of tasks or the provision of training. In determining whether the relevant measures would impose a burden, the Act provides that account should be taken of the cost involved, the resources of the employer and the possibility of obtaining public funding or assistance.
In its interpretation of section 16, the Supreme Court decision has now established a more onerous standard for employers than that previously set out in the Court of Appeal, particularly in relation to the following questions:
What does an employer need to consider?
In its decision, the Court of Appeal emphasised the distinction it perceived between tasks and duties, noting that the examples of appropriate measures contained in section 16 focused on the “distribution of tasks”. The Court of Appeal concluded that the duty of an employer was only to consider a distribution of certain tasks and did not extend to considering the removal or redistribution of duties or essential functions connected with the employee’s role. The Court rejected the Labour Court’s position that “a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation”.
The Supreme Court disagreed and considered that no such distinction was evident from the wording of section 16. It held that employers were obliged to consider all appropriate measures which could be undertaken to provide reasonable accommodation and to demonstrate, if no such measures were taken, that this was only because those measures would be disproportionate or unduly burdensome. In setting out this test, the Court did accept that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.
Is employee consultation required?
The Court of Appeal decision appeared to suggest that, in assessing whether an employee was capable of performing their role with reasonable accommodation, it was not necessary for an employer to consult with the employee. This marked a departure from the position outlined in the case of Humphries v. Westwood. In Humphries, the Circuit Court found that an enquiry relating to an employee’s capacity could only be regarded as adequate if the employee concerned was allowed a full opportunity to participate at each level.
The Court of Appeal considered that the employer’s statutory duty was objectively concerned with whether the employer had complied with the obligation to reasonably accommodate the employee such that there was no justification for the rule requiring employee participation in the process.
While the Supreme Court did not go so far as to hold that there is a mandatory duty to consult with employees in each and every case, it did note that “in this State … our courts have always attached importance to fair procedures where employment is at stake” before noting that “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”.
Key steps for employers
In order to satisfy their obligations to provide reasonable accommodation, employers should:
- Identify the measures which could be taken to reasonably accommodate the employee in carrying out their role;
- Assess whether those measures would impose a disproportionate burden having regard to the costs involved, the resources available and the possibility of obtaining public funding or other assistance. It should be noted in this regard that the Supreme Court decision emphasises that exploring the possibility of obtaining public funding constitutes a “mandatory” obligation; and
- Consult with the employee throughout the process.
Duties of a tribunal
The Supreme Court decision also contains some interesting observations in relation to the duties of statutory tribunals and the concept of “curial deference” which means courts should be slow to interfere with the decisions of expert administrative tribunals save where its conclusions were based on identifiable errors of law or unsustainable findings of fact.
“Curial deference” and the duty to give reasons
The outcome of the Supreme Court’s decision in Nano Nagle was to remit the case for further consideration by the Labour Court having regard to what the Court considered to be considerable “factual lacuna” in its judgment. This included a failure on the part of the Labour Court to take account of expert evidence to the effect that Ms Daly’s role (as an SNA) could not be re-arranged to accommodate her.
In reaching this conclusion, Judge McMenamin provided interesting commentary on a previous case on this principle. In particular, he commented that a previous leading case of Henry Denny & Sons (Ireland) Limited v Minster for Social Welfare – which sets out the principle that courts should be slow to interfere with the decisions of expert administrative tribunals save where its conclusions were based on identifiable errors of law or unsustainable findings of fact - was not “the last word on this issue”. Instead he referred to the decision of the Supreme Court in Attorney General v Davis in which the Court identified considerations of fact to which the Court may have regard when assessing the decisions of administrative tribunals. These include findings of fact or inferences where there is no evidence to support them or which no reasonable decision-making body could make. Judge McMenamin remarked that deference is only due to a statutory tribunal when it is acting in compliance with its statutory duties and that in the event of a failure on the part of the tribunal to do so, the court must intervene.
Judge McMenamin also noted that “a tribunal … which is under a duty to give reasons for its decision, should, as part of this process, give some outline of the relevant facts and evidence upon which the reasoning is based”.
On the basis of its conclusion that the Labour Court had failed in its statutory duty by failing to consider all relevant evidence and to provide reasons for its conclusions on the basis of such evidence, the Supreme Court considered that the only remedy was to remit the appeal “to the legal forum charged under the statute with evaluating the evidence according to the law – and applying the law to the facts”. Although the Judge considered it regrettable that this would extend the process in a case which has taken so long to come to a conclusion, he considered “the Court should not act as a surrogate Labour Court, which is charged with carrying out a statutory function“. This statement is in itself interesting given the recent decisions in which the Courts have refused injunctive relief so as to avoid usurping the statutory jurisdiction of the WRC (as in the cases of Kearney v Byrne Wallace and Maurice Power v HSE).
Awards of compensation
The Supreme Court judgment also provides interesting commentary on the duty to justify awards of compensation. In his judgment for the majority, Judge McMenamin notes that “as a matter of fair procedures, parties are entitled to be provided with an appropriate level of reasoning … for the levels of compensation”. As such, he criticised the Labour Court for moving from “a heading “Outcome” to that of “Redress” five lines later, without any explanation as to how [the] particular compensation sum was arrived at”.
It is also important to note that in the Nano Nagle case, the basis of the Labour Court’s award was not that the school had wrongly refused to provide Ms Daly with reasonable accommodation but rather that it had failed to give full consideration to whether Ms Daly could be so accommodated and in doing so, had breached its obligations under section 16. However, the Supreme Court noted, without making any pronouncement on the particular case, that failure to comply with an obligation “will not, in itself, give rise to a right to compensation”. Instead, the effect of the failure must be considered in the context of section 16 as a whole.
The decision of the Supreme Court has restored a level of balance to a heavily disputed area of employment equality law. In requiring an employer to engage in a more in-depth consideration of the appropriate measures, which can be put in place to facilitate a disabled employee, the decision goes further than that of the Court of Appeal and prevents a situation where an employer can categorise elements of a job as essential duties in order to limit its obligation to consider re-organisation of the way in which that work is done. However, the express recognition by the Court to the effect that an employer will, in almost all circumstances, not be required to create a different job for the employee, is a sensible approach which will be welcome news for all employers.
Its express imposition of a duty on employment tribunals to provide detailed reasons for awards of compensation will also be welcome news to employees as it will provide greater scope for challenging awards which employers feel are unfair or unduly burdensome.