Friday, March 4, 2016

Ireland - The Concept of 'Reasonable Accommodation' Under Irish Employment Equality Law


The High Court recently affirmed a decision of the Labour Court which had awarded an employee €40,000 compensation on the basis that her employer had failed to engage in any meaningful way with the concept of "reasonable accommodation" under the Employment Equality Act, 1998 - 2015 (the “Equality Acts"). The decision in Nano Nagle School v Daly provides helpful guidance regarding the steps which employers need to take to ensure that they are meeting their statutory obligation to provide reasonable accommodation to employees/prospective employees with a disability.

The Equality Acts provide that an employer is not required to recruit, promote, retain or provide training or experience to an individual if he/she “is not 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".

Before the Labour Court, the employer had argued that the above quoted section did not require an employer to continue an employee in employment who was not fully capable of undertaking the job which he/she was employed to do. Before the High Court, the employer modified its position and conceded that the statutory obligation could require the stripping out of tasks peripheral to the original job. The concept of reasonable accommodation is elaborated upon in the Equality Acts which also provide that a person with a disability "is fully competent to undertake, and fully capable of undertaking, any duties, if, the person would be so fully competent and capable on reasonable accommodation (referred to as “appropriate measures”) being provided by the person's employer”. The Act goes on to define the term "appropriate measures" as including the adaptation of premises and equipment, patterns of working time, distribution of tasks etc.

By way of factual background, the plaintiff in this case had been employed as a special needs assistant (SNA) by a school. Following an accident, she became paralysed from the waist down and wheelchair bound. She was referred for various occupational health assessments and the school arranged for a number of risk assessments to be conducted. An occupational therapist had determined that Ms. Daly could carry out 9 of the 16 duties of an SNA or return to work as a floating SNA which would obviously have necessitated the reorganisation of other SNAs’ duties. The school maintained that there was no position of floating SNA, albeit that any potential redistribution of tasks to other SNA's was not discussed with them. In essence, therefore, the school insisted that Ms. Daly be able to perform all of the duties attached to her role as an SNA.

The High Court concluded that the school’s interpretation of the concept of reasonable accommodation was erroneous stating that if such a position were correct "it would seem difficult to envisage any circumstances in which a person suffering from a disability could be reasonably accommodated". The High Court agreed with the Labour Court that the school had not fulfilled its obligations under the Act in not having considered a redistribution of Ms. Daly's tasks.
This case provides employers with an important reminder of, their obligation to reasonably accommodate individuals with a disability and the specific steps which should be taken to ensure that the statutory obligation is satisfied.