In a seminal decision regarding disability discrimination, the Court of Appeal overturned a decision of the High Court relating to a disabled Special Needs Assistant (SNA) who was dismissed on incapacity grounds. The Court of Appeal has vacated the award of compensation of €40,000 which had previously been made to the dismissed employee.
Background
Ms Daly (“Ms Daly”) was employed by Nano Nagle School (the “School”) since 1998 as a SNA. She suffered serious injuries in a road traffic accident in 2010. Although she achieved partial recovery, she remained confined to a wheelchair. She was keen to return to work in January 2011 and the School sought various expert reports in this regard. In particular, a report was prepared by an occupational therapy assessor (the “assessor”). It stated that Ms Daly could undertake, wholly or partly, nine out of the sixteen tasks required of a SNA. Further to these reports, the School Board concluded that Ms Daly did not have the capacity to undertake the full set of duties associated with a SNA, and nor would she in the future. As a result it would not be possible for her to return to work.
The Legislative Position
The case concerned the interpretation of s.16 of the Employment Equality Acts 1998 to 2015 (the “Acts”) which provides at s.16(1) that nothing in the Act is to be construed as “requiring any person to…retain an individual in a position…if the individual …is not (or, as the case may be, no longer) fully competent and available to undertake and fully capable of undertaking, the duties attached to that position having regard to the conditions under which those duties are, or may be required to be performed.”
Section 16(3)(b) imposes an obligation on employers to take “appropriate measures, where needed in a particular case, to enable a person who has a disability…to participate in employment…unless the measures would impose a disproportionate burden on the employer.”
Section 16(4) outlines the meaning of appropriate measures as including the “adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision or training or integration resources”.
Equality Tribunal, Labour Court and High Court Decisions
Ms Daly made a complaint to the Equality Tribunal on the basis that the School had failed to provide appropriate measures to accommodate her, as a person with a disability, to return to work contrary to s.16 of the Acts. The Equality Tribunal found in favour of the School and Ms Daly appealed to the Labour Court.
The Labour Court allowed the appeal. It held that the School’s Board failed to discharge its statutory duty to take adequate measures to provide Ms Daly with reasonable accommodation so as to allow her to continue in employment.
The Labour Court’s decision was appealed to the High Court, which upheld the decision. The High Court agreed with the Labour Court’s interpretation of s.16 of the Acts and its application of the law to the facts. It also dismissed the School’s complaint that the oral evidence of the assessor had not been given proper regard.
The High Court considered the Court of Justice of the European Union (CJEU) decision of HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab (C-335/11), agreeing with the Labour Court position that “appropriate measures” as referred to in s.16(4) of the Acts included the adaptation of both patterns of working time and tasks. Therefore there was no requirement that Ms Daly be capable of fulfilling all of the duties of her job.
Court of Appeal Judgment
The School appealed to the Court of Appeal, which gave its decision on 31 January 2018.
The finding in relation to the assessor’s report highlights the wider context to the findings made. The Labour Court and High Court had more or less ignored the fact that the report stated that Ms Daly would be unable to work in any of the classes, and that there would be a safety issue for Ms Daly, staff and children. Many of the children required hands-on intervention due to their special needs or behavioural issues, and it was stated in the report that two physically able SNAs were required in the classes. As a result, the assessor suggested Ms Daly act as a “floating SNA”; in addition to the two SNAs per class.
The Court of Appeal stated “he facts are incontrovertible and the Labour Court paid insufficient attention to them.” The court criticised the Labour Court’s view that the School had not made attempts to facilitate the idea of a floating SNA, when in fact the School had followed up with its funding body and was refused. It also criticised the Labour Court’s view that the floating SNA was not a new role, when it was clear from the assessor’s report that it was.
The Labour Court and High Court took the view that there had been no proper consideration of the redistribution of Ms Daly’s tasks. The Court of Appeal disagreed noting “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.”
A key point which arose was whether Ms Daly had to be capable of only some of the tasks required of a SNA or all of the tasks required. The Court of Appeal 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.”
Comment
The Court of Appeal’s judgment highlights the fact that s.16 does not obligate the creation of a new role for a disabled employee.
It remains wise for employers to properly consider the facts of each case. Where there are non-essential tasks which the employee can no longer carry out, it would be sensible to redistribute those tasks where possible. However where an employee can no longer carry out tasks fundamental to their role, this case supports the proposition that this may be grounds for dismissal. Crucially, the employer should also obtain expert reports before making any decision. The employer should be able to demonstrate adequate consideration of these reports and reasonableness on its part.
Contributed by: Catherine O’Flynn, Jeffrey Greene and Siobhán Lafferty
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