By Audrey Whyte, Firm: lewissilkin

A recent Irish Supreme Court decision clarifies the legal principles to be applied to the question of what measures of ‘reasonable accommodation’ an employer should consider to enable employees with a disability to participate in the workforce.

Background

The general position under Irish law (the Employment Equality Acts, the ‘EEA’) is that employers are required to make certain ‘reasonable’ adjustments to the workplace to allow individuals with disability to carry out their role. This duty to provide reasonable accommodation requires employers take ‘appropriate measures’ to enable a person who has a disability to access, participate and undergo training for the employment, unless imposes a ‘disproportionate burden’ on the employer. The EEA does not, however, oblige employers to recruit, promote, retain or provide training to an individual who “is not capable of undertaking the duties attached to that position”. Employers are also not required to create a new position for someone who is not able to perform a particular role.

Just how far this duty extends has been the subject of judicial analysis in recent years, culminating in the Supreme Court (SC) decision in the long-running case of Nano Nagle School v Daly.

Facts of the case

Ms Daly was a Special Needs Assistant (SNA) in the Nano Nagle School. After suffering an accident in 2010, she underwent a period of rehabilitation and then engaged with the school about her return to the SNA role. The school ultimately refused permission for her to return to work in 2011. This decision was made following an assessment by an occupational therapist (OT) and two separate risk assessments relating to Ms Daly’s working environment. The OT assessment determined that she could perform nine of the 16 tasks required of her, and on the basis of this assessment the school concluded that Ms Daly was no longer fit to perform her role as a SNA. The school further decided that there were no appropriate measures of reasonable accommodation that could be put in place to facilitate her return to her role.

The earlier decisions

Ms Daly disputed this finding and initially referred her complaint to the Equality Tribunal in 2013. The Equality Officer agreed with the school’s decision and held that it fulfilled its obligation to consider what reasonable accommodations could be put in place for Ms Daly before coming to its decision.

That decision was reversed by the Labour Court, which held that the school had failed to comply with its reasonable accommodation obligations under the EEA. Although Ms Daly was severely limited in the number of tasks she could perform, the school was obliged to consider whether the work could be reorganised, and the tasks could be redistributed amongst the other SNAs. The Court also noted that the school had not consulted with Ms Daly in reaching its decision that she was no longer fit to work. Ms Daly was awarded EUR 40,000 as compensation, and this decision was upheld in the High Court (HC) on appeal.

The Court of Appeal (CA) reversed the HC’s decision and found that the school had fulfilled its duty to provide reasonable accommodation under the EEA. The CA applied a more narrow interpretation of an employer’s obligations in the EEA. They found that while employers may need to consider the redistribution of ‘non-essential’ tasks, their obligations under the EEA could not be widened to include consideration of a redistribution of the ‘essential functions’ or ‘core duties’ of an employee’s role.

The SC decision

Ms Daly appealed the CA decision. Both she and the Irish Human Rights Equality Commission (the IHREC, which was not party to the litigation but acting as an interested party) submitted that the decision introduced significant qualifications to an employer’s obligation to provide reasonable accommodation to enable an employee with a disability participate in the workplace.

The key issue for the SC to determine on appeal was whether the obligation to provide reasonable accommodation was subject to the limitation that employers do not have to keep individuals in a role if they are no longer able to undertake the ‘duties’ of that role.

The SC noted that the terms ‘essential function’ or ‘core duties’ as referred to in the CA decision do not appear in the EEA, and that if it was the intention of the legislature to create such categories of duties it would have been simple to do so. The SC rejected the interpretation adopted by the CA, and held that the relevant provisions of the EEA could not be interpreted so as to create an artificial distinction between essential duties and non-essential tasks when determining what reasonable accommodation could be provided. The SC held that this interpretation could not have been intended by the legislators, and agreed with Ms Daly and the IHREC that the CA’s approach appeared to insert additional wording into the EEA.

The SC noted that the mandatory primary duty of employers, as set out in Section 16(3) of the EEA, is to:

‘take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, participate and advance in employment and undergo training unless the measures would impose a disproportionate burden’.

Appropriate measures are defined under the EEA as ‘effective and practical measures where needed in a particular place to adapt the employer’s place of business, including….the distribution of tasks.’ The SC confirmed that the only limitation that can be placed on this duty is one of proportionality, that is: do the measures proposed impose a disproportionate burden on the employer? This duty cannot be limited by a consideration of whether the appropriate measures involve a redistribution of essential or non-essential duties of the role.

The SC stated that it failed to see any policy or common good reason to confine the ‘distribution of tasks’ to non-essential ones. It held that the phrase ‘distribution of tasks’ could not be interpreted to allow employers to arbitrarily classify certain aspects of a role as ‘tasks’ and some as ‘essential duties’.

Implications of the decision

The main outcome of this decision is the confirmation that employers must, in appropriate cases, consider the redistribution of both non-essential tasks and essential duties when looking at what reasonable accommodation can be provided to employees under the EEA.

There are a number of issues arising from this.

While the decision is obviously a welcome development for employees, it does not clarify the exact limits of the school’s obligation in the current case. It is for the deciding body (in this case the Labour Court) to determine in each case whether the measures proposed are properly considered to be ‘reasonable accommodation’ or whether, in reality, what is sought is an entirely different job, which an employer is not obliged to provide under the EEA.

This leaves employers with the question of what happens when the redistribution of tasks/duties essentially involves creating a completely new role. For example, in the case of an employee with a physical disability, do employers need to consider redistributing the labour-intensive aspects of their role to other employees in exchange for the non-labour intensive aspects of other roles? Would this not effectively create a new role that no longer involves the physical labour elements of the previous role? Ultimately, the question of whether this form of redistribution of duties places a disproportionate burden on an employer in any given case would be for the relevant deciding body to assess in the event of a claim.

The redistribution of duties also raise the issue of employee consultation, as employers must consider whether there is a consequent obligation to consult with, and get the consent of, other employees whose tasks would need to be redistributed to provide the reasonable accommodation.

Also on the topic of consultation, the SC decision does not impose a mandatory obligation on employers to consult with employees when considering what, if any, reasonable accommodation could be provided to them. However, the SC did note that a ‘wise employer’ would provide ‘meaningful participation in vindication of his/her duty under the Act’ but stated that absence of consultation cannot in itself constitute discrimination.

The SC decision clarifies that a consideration of whether a particular measure imposes a ‘disproportionate burden’ on an employer involves an assessment of the financial and other costs involved, the scale and financial resources of the employer and the possibility of obtaining public funding or other assistance. The decision appears to confirm that there is a mandatory obligation on employers to consider if there is any public or other funding available before it determines that reasonable accommodation is not possible.

The decision as to whether the school has fulfilled its duty to reasonably accommodate Ms Daly under the EEA has now been referred back to the Labour Court for a determination, given its failure at the original hearing to consider certain relevant evidence including evidence given by the OT which contradicted her report and failure to explain the basis for its award of compensation.

The SC decision confirms the statutory duty of tribunals, such as the Labour Court, to provide a decision based on legal principles by reference to the evidence before it, and provide detailed reasoning for any awards of compensation. As a result, this decision may be of assistance to employers and their legal advisors in seeking to challenge what they view as unreasonable decisions and awards in the future.

What next for employers

Following this decision, employers seeking to comply with their obligations under the EEA should:

1. Identify appropriate measures that can facilitate employees with a disability engaging in the workforce. These measures can involve a redistribution of both essential and non-essential duties of a particular job.

2. Consider whether these measures place a disproportionate burden on the business. The only limit that can be placed on the employer’s obligation to provide reasonable accommodation is one of proportionality. What amounts to disproportionate burden must be assessed in any given case considering:

  • the financial and other costs involved;
  • the resources and scale of the employer’s business; and
  • the availability of public funding or other assistance to implement the appropriate measures.

3. Consult with employees throughout the process. As noted by the SC, although not necessarily mandatory (or discriminatory where an employer fails to do so), a ‘wise’ employer will consult with the employees throughout the process.

While the decision provides welcome guidance on the applicable principles, employers need to bear in mind that what constitutes ‘reasonable accommodation’ in any given case will depend on the facts, guided by the reasonableness and proportionality of any appropriate measures proposed.