The Irish Employment Equality Act 1998 (the "1998 Act") provides statutory protection against discrimination in the workplace and imposes certain statutory duties on employers to implement "appropriate measures" (also known as reasonable accommodation) to assist persons with disabilities to access and participate in employment.
The question that has concerned employers is to what extent such reasonable accommodation includes a requirement to reorganise staff structures and to create a new reduced role for disabled employees.
In Nano Nagle School v Daly1, the Court of Appeal confirmed that before an employer may lawfully terminate the employment of a disabled employee, it must make reasonable adjustments to accommodate that employee. However, the court, in a significant decision, stated that such adjustments only need to be made if the result is that the disabled employee can carry out the essential tasks of his or her job.
In other words, the employer is not required to strip away the essential tasks of the disabled employee's role. If the disabled employee will never be able to carry out the essential tasks of his or her role, then the question of reasonable accommodation does not arise.
The Statutory Obligation
Section 16(1) of the 1998 Act provides that there is no requirement to retain an individual in a position, if the individual will not, or is not capable of, undertaking the duties attached to that position.
Section 16(3) provides that a person who has a disability is fully competent and capable of undertaking any duties if they can do so with the provision of reasonable accommodation by an employer.
Reasonable accommodation is defined as including "the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources."
The plaintiff was employed for 12 years as a special needs assistant in the Nano Nagle School, Killarney (the "School") which specialised in educating children with special needs.
In 2010, the Plaintiff was involved in a road traffic accident sustaining severe injuries resulting in paraplegia, which left her confined to a wheelchair. After her rehabilitation, the Plaintiff was keen to return to her role with the School.
When she approached the School seeking to return to work in January 2011, the School sought the advice of experts in occupational health, risk assessment, occupational therapy and ergonomics. They found that the Plaintiff did not have the capacity to undertake nine of the 16 main duties associated with her role. As a result of those findings, the School board concluded that it would not be possible for her to return to her employment.
The Plaintiff's claim that the School had failed to provide reasonable accommodation to enable her to return to work, contrary to the 1998 Act, was dismissed by the Equality Tribunal. However, it was subsequently upheld by the Labour Court (and the High Court) who awarded her €40,000 compensation.
Court of Appeal Decision
On appeal, the Court of Appeal noted that, on the facts, the Plaintiff was no longer able to perform the essential tasks of a special needs assistant in that particular school and that this inability could not be remedied by any appropriate measures or accommodation by the School.
The court made it clear that reasonable accommodation does not equate to an obligation on employers to strip away "essential tasks, especially the precisely essential elements that the position entails." It confirmed that section 16, by virtue of subsection (1), requires "full competence as to tasks that are the essence of the position."
The court also noted that, contrary to the Labour Court's determination, there was nothing in section 16 to justify 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 of the employee's capacity to do the essential tasks of the job.
Following this decision, it is now clear that employers do not have to create new reduced roles for disabled employees, if the new or reduced role does not include the essential tasks or essential elements of the original role.
One thing that is not always certain, however, is what constitutes the essential tasks or essential elements of a role. Applying the court's decision to different jobs and different contexts will likely be the focus for claimants and their advisors in the future.
If you require any further advice or assistance, please speak to your usual Maples and Calder contact or the contact listed above.
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