Disability case: Supreme Court clarifies extent of employers' duty to provide reasonable accommodation

Background
Facts
Earlier decisions
Supreme Court decision
Implications
Takeaways for employers

A recent Supreme Court decision clarifies the legal principles to be applied to the question of which measures of reasonable accommodation an employer should consider to enable disabled employees to participate in the workforce.

Background

The general position under Irish law (the Employment Equality Acts) is that employers must make certain reasonable adjustments to the workplace to allow individuals with a disability to carry out their role. This duty to provide reasonable accommodation requires employers to take appropriate measures to enable an individual with a disability to access, participate in and undergo training for their employment, unless it imposes a disproportionate burden on the employer. However, the Employment Equality Acts do not 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 cannot 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 decision in the long-running case Nano Nagle School v Daly.(1)

Facts

Ms Daly was a special needs assistant at 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 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 and two separate risk assessments relating to Daly's working environment. The occupational therapist's assessment determined that Daly could perform nine of the 16 tasks required of her and, based on this assessment, the school concluded that she was no longer fit to perform her role as a special needs assistant. The school further decided that there were no appropriate measures of reasonable accommodation that could be implemented to facilitate Daly's return to the role.

Earlier decisions

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 had fulfilled its obligation to consider what reasonable accommodations could be implemented before reaching its decision.

The Labour Court reversed the decision, holding that the school had failed to comply with its reasonable accommodation obligations under the Employment Equality Acts. Although Daly was severely limited in the number of tasks that she could perform, the school had been obliged to consider whether the work could be reorganised and the tasks could be redistributed among the other special needs assistants. The court also noted that the school had not consulted with Daly in reaching its decision that she was no longer fit to work. Daly was awarded €40,000 as compensation, and this decision was upheld in the High Court on appeal.

The Court of Appeal reversed the High Court's decision and found that the school had fulfilled its duty to provide reasonable accommodation under the Employment Equality Acts. The Court of Appeal applied a narrower interpretation of employers' obligations under the Employment Equality Acts. It found that while employers may need to consider the redistribution of non-essential tasks, their obligations under the Employment Equality Acts cannot be widened to include consideration of a redistribution of the essential functions or core duties of an employee's role.

Supreme Court decision

Daly appealed the Court of Appeal decision. Both she and the Irish Human Rights Equality Commission (IHREC) (which was not party to the litigation but acted as an interested party) submitted that the decision introduced significant qualifications to employers' obligation to provide reasonable accommodation to enable a disabled employee to participate in the workplace.

The key issue for the Supreme Court to determine on appeal was whether the obligation to provide reasonable accommodation was subject to the limitation that employers need not keep individuals in a role if they can no longer undertake the duties of that role.

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

The Supreme Court noted that the mandatory primary duty of employers, as set out in Section 16(3) of the Employment Equality Acts, 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 Employment Equality Acts 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 Supreme Court confirmed that the only limitation that can be placed on this duty is one of proportionality (ie, 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 Supreme Court 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 others as 'essential duties'.

Implications

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 Employment Equality Acts.

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 Employment Equality Acts.
• This leaves employers with the question of what happens when the redistribution of tasks and duties essentially involves creating a completely new role. For example, in the case of an employee with a physical disability, should employers 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 which 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 raises 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 Supreme Court decision does not impose a mandatory obligation on employers to consult with employees when considering what, if any, reasonable accommodation could be provided thereto. Although the Supreme Court noted that a wise employer would provide "meaningful participation in vindication of his/her duty under the Act", it stated that absence of consultation cannot in itself constitute discrimination.
• The Supreme Court 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 whether 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 Daly under the Employment Equality Acts has now been referred back to the Labour Court for a determination, due to its failure at the original hearing to:
  • consider certain relevant evidence, including evidence given by the occupational therapist which contradicted her report; and
  • explain the basis for its compensation award.

The Supreme Court 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 compensation awards. As a result, this decision may help employers and their legal advisers to challenge what they view as unreasonable decisions and awards in future.

Takeaways for employers

Following this decision, employers seeking to comply with their obligations under the Employment Equality Acts should take the following steps:

• identify appropriate measures which can facilitate disabled employees engaging in the workforce. These measures can involve a redistribution of both essential and non-essential duties of a particular job;
• consider whether these measures place a disproportionate burden on the business. The only limit which can be placed on an employer's obligation to provide reasonable accommodation is one of proportionality. What amounts to a disproportionate burden must be assessed in any given case having regard to:
  • 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; and
• consult with employees throughout the process. As noted by the Supreme Court, although not necessarily mandatory (or discriminatory where an employer fails to do so), a wise employer will consult with its employees throughout the process.

While the decision provides welcome guidance on the applicable principles, employers must consider 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.

For further information on this topic please contact Audrey Whyte at Lewis Silkin Ireland by telephone (+353 1566 9876) or email (audrey.whyte@lewissilkin.com). The Lewis Silkin Ireland website can be accessed at www.lewissilkin.com/en/ireland.

Endnotes

(1) Nano Nagle School v Daly – judgment available here.