A lot of employers and HR professionals would be very familiar with the High Court decision of Nano Nagle -v- Daly [2015] IEHC 785. The case was a landmark case on reasonable accommodation where the High Court set out a really high standard for employers to achieve when considering reasonable accommodation for employees.

In summary, The High Court concluded that employers had a duty to consider all reasonable accommodation measures, even in circumstances where the employee ultimately couldn’t have been reasonably accommodated.

The High Court also set out that employers should consider altering an employee’s working hours, distributing tasks they can’t perform to other employees, and altering their working duties.

Importantly, the Court of Appeal has overturned the High Court decision entirely and has outlined some very important points that all employers and HR professionals need to be aware of.

Background and Disability

Daly worked as a Special Needs Assistant (SNA) in a school where the students had a range of moderate and severe medical conditions. Some students were on the autistic spectrum, had severe epilepsy, dyspraxia, etc.

Other students had anger issues which could lead to physically acting out, others needed assistance in getting about, using facilities, using the toilet, etc. Daly worked in the school for 10 years and was then involved in a serious road accident which left her permanently wheelchair bound due to paraplegia.

Reasonable Accommodation

The school engaged two separate occupational health specialists. The first specialist concluded that there were three different class types that an SNA would be required to teach, each class would have at least two SNAs at any one time, and that there were 16 essential duties of an SNA.

In terms of Ms. Daly, the first specialist concluded that she could perform 9 of the 16 duties, that she could act as one of the two SNA assigned to a room, but that she could operate as a “floating SNA” moving from room to room performing the non-physical aspects. Ms. Daly could not perform any of the physical elements of the role.

The school considered the ‘floating SNA’. The school operates entirely based on public funding and clarified if the floating SNA post could be accommodated.

However, the funding body did not approve of this, stating that “the response was that SNAs are provided for the benefit of the pupils and not for the benefit of the staff, and accordingly, funding for a floating SNA could not be sanctioned”.

On that basis, Daly would need to be a full-time SNA. The school engaged another occupational therapist to see if Daly could work as a full-time SNA and the second report concluded that she was not and would not be fit to work in that position (with all 16 duties) and that no reasonable accommodation could achieve this.

Simply put, once funding was rejected for an additional post of floating SNA, the school was faced with having to replace a permanent SNA with a floating SNA and they did not really consider how they could reasonably accommodate this.

The idea was rejected for a number of reasons, including the increased physical demands placed on other SNAs who would have to take on all of the physical work Daly would otherwise have performed.

Labour Court and High Court

The Labour Court held that this failure to properly consider the floating SNA role beyond securing funding amounted to a failure of the employer to meet its obligations under s.16 of the Employment Equality Acts.

The Labour Court concluded that it could not determine if Daly could, in fact, have been reasonably accommodated but the employer’s failure to consider measures was discrimination as of itself.

The Labour Court was also critical that the employer had not canvassed the views of other SNAs when it came to considering how reasonable it would be to redistribute work to them. They awarded Daly compensation of €40,000. This decision was upheld by the High Court.

Court of Appeal

In an important decision that will impact all cases on employees with disabilities, the Court of Appeal entirely overturned the Labour Court and High Court. The following are the essential points:

• In applying reasonable accommodation, the employee must still be able to perform the “essential tasks” of their role.
  • “Adjustment to access and workplace and 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.”

• The employer is not required to create an entirely new position for an employee when considering reasonable accommodation.
  • “The Labour Court was in error in dismissing the school’s argument that the floating SNA position required the creation of an entirely new position. That is just what it involved. Such a job would be a new position in the school; there was not a floating SNA working in different classes from time to time. It would be entirely different from the work of the other SNAs. Classes in which two assistants were needed would continue to need them and Ms. Daly would not be able to replace one person, as the report made clear.”

• An employer is not required to canvas the views of other employees when it comes to considering redistributing a disabled employee’s work when considering reasonable accommodation.
  • “The criticism of the Principal for not approaching the other SNAs to take on between them the physical aspects of the job is not justified. The school had a decision to make about Ms. Daly’s capacity to work as an SNA. The Principal was not required to canvas with the other SNAs whether they would be willing to take on the work that Ms. Daly could not do. Even if they were willing, the school Principal and the Board would still have the decision to make. It was not sufficient to have a majority vote of the SNAs.”

• In considering if an employer has met its reasonable accommodation obligations, the Tribunal must consider the employer’s circumstances, particularly the nature of the work.
  • “The school management had to decide in the interests of the whole school community, but primarily the children whose care was entrusted to the school. They needed physical, hands-on SNA care work. Parents were entitled to insist on a full complement of capable care staff. Safety is a major concern: of children from children who act out; of the children who act out; of the SNAs; of other staff; and of Ms. Daly herself. The school was not in a position to take chances with care and safety obligations towards the whole school community; it was entitled to say that it needed all of its complement of SNAs to be fully capable… The failure of the Labour Court to address these matters not only undermines the validity of its analysis but also serves to highlight the error of its approach in focussing on the position of Ms. Daly to the exclusion of the other legitimate interests that the school had to accommodate.”

• A failure to consider reasonable accommodation is not discrimination as of itself; a tribunal must consider whether or not the employee could actually have been reasonably accommodated.
  • “The proposition that there is a freestanding obligation on an employer to carry out an evaluation, irrespective of the other circumstances of the case and without regard to the fundamental question as to whether the employee is actually capable of doing the job, is starkly stated as a matter of law by the Labour Court. This is ultimately the basis for its conclusion that Ms. Daly was entitled to compensation on the basis that the employer failed in its duty under the Act to make reasonable accommodation for the employee… There is nothing in s. 16 to justify this rule… 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.”

If you have any questions in relation to reasonable accommodation please don’t hesitate to contact the advice line on +353 1 886 0350