Reasonable Accommodation – how far must employers go?
The High Court has recently affirmed a decision of the Labour Court which awarded an employee €40,000 for failure to adequately consider or evaluate potential options of reasonable accommodation. Justice Noonan's decision in this case (Nano Nagle School v Marie Daly  IEHC 785), focused on the employer's statutory duty of reasonable accommodation in circumstances where a previously able employee experienced a disability during the course of employment. This decision provides a useful insight into the breadth of that duty as to whether the employee should be required to be able to perform the entirety of the duties associated with the original position.
What's the legal position?
Section 16 of the Employment Equality Acts 1998-2015 requires an employer to "do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities". However, an employer is not required to retain an individual in a position if that individual is not "fully competent and available to undertake" the duties attached to that position. The question to be considered, therefore, is to what lengths must an employer go to discharge this statutory duty?
The claimant, Ms Daly, had been employed as a special needs assistant ("SNA") at a special needs school. Following an accident in which Ms Daly was paralysed from the waist down and wheelchair bound, an occupational therapist determined that Ms Daly could carry out 9 of the 16 duties of an SNA or return as a "floating SNA", which would necessitate the reorganisation of the duties of other SNAs.
Ultimately, the school determined that it could not accommodate Ms Daly's return to work on the basis that she was medically unfit to undertake the entirety of the duties associated with her role as an SNA. Significantly, the potential alternative options to reasonably accommodate Ms Daly's return were not discussed with either Ms Daly or the 26 other SNAs. Further, the school did not consider offering Ms Daly a return to her previous secretarial role or consider the option of a part-time arrangement.
What happened next?
On appeal, the High Court determined that the school's insistence that Ms Daly perform all of the duties attached to the SNA role, which she could not do in light of her recent disability, was "erroneous". In particular, Justice Noonan found: "were the school's position correct, it would seem difficult to envisage any circumstances in which a person suffering from a disability could be reasonably accommodated". The High Court noted that the definition of "appropriate measures" includes the adaptation of both patterns of working time and distribution of tasks. Accordingly, "the adaptation of the distribution of tasks must also, where appropriate, include the elimination of tasks since otherwise the section would fail to achieve the objective for which the legislation was enacted". On this basis, the High Court found that the school had failed to even consider a redistribution of Ms Daly's tasks as an SNA, rendering the school in breach of section 16 of the Employment Equality Acts.
What does this mean for Irish employers?
Notwithstanding the foregoing, it is important to note that neither the Labour Court nor the High Court ultimately determined that Ms Daly could be reasonably accommodated. Rather the focus was on the school's failure to fully consider all alternative options, such that the Employment Equality Acts were breached. It is noteworthy that the Employment Equality Acts expressly provide that an employer is not required to retain an employee who is not "fully" competent, a literal interpretation of which would necessarily conclude that the school is entitled to require that Ms Daly be able to perform all of the functions associated with her role as an SNA, albeit with reasonable accommodation.
Accordingly, a prudent employer should be mindful to take steps to actively explore and consider any and all potential alternatives that may amount to "appropriate measures" (unless those measures would impose a disproportionate burden on the employer) so as to reasonably accommodate an employee with a disability.
Date published: 21 January 2016