Employment Law Update: Disability and the Employer: “All That is Reasonable?”

Background

The employer is a school for children with various levels of physical and intellectual disability. The employee, Ms Daly was employed as a Special Needs Assistant (“SNA“), and she also worked as a part-time secretary at the school. Following an accident, Ms Daly was paralysed from the waist down and now requires a wheelchair. She was one of twenty seven SNAs working at the school. An occupational health specialist engaged by the school determined that Ms Daly was not capable of undertaking all of the duties of an SNA. Ultimately,the school dismissed Ms Daly on the basis that she lacked the capacity to carry out the full extent of an SNA’s duties. It is important to note that the school did not consult with either Ms Daly, or with the other SNAs as to what other options might be available to accommodate her in the workplace with the duties she was able to undertake. Neither did the school address whether Ms Daly could be engaged on a part-time basis. Significantly, the school also failed to consider whether Ms Daly could continue in her role as a part time secretary with the school.

The Law

An employer is required to do “all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities”  (Section 16 of the Employment Equality Acts, 1998).

Ms Daly claimed that the school had failed in its duty under section 16.

High Court Appeal

On appeal, the High Court held that the school’s initial position that Ms Daly must perform all of the SNA duties was incorrect. It was accepted that reasonable accommodation extended to altering the hours of work and the distribution of tasks, provided it did not impose a disproportionate burden on the employer. It was further noted that this included a reduction of the particular tasks required of the employee. The High Court held that the school had failed to give full and proper consideration to all the possibilities, and it was that failure which rendered the school in breach of section 16 of the Employment Equality Acts.

Key takeaways for Irish employers

The Employment Equality Acts provide that an employer is not required to retain an employee in a role if that employee is not “fully competent and available to undertake” the duties attached to that role. This case does not alter that legal position. The focus of this case was on the school’s failure to fully consider all alternative options, which amounted to the breach of the legislation.

In order to demonstrate that an employer has exhausted its obligations under the legislation, it must present evidence to show, where appropriate, that it has fully considered the possibilities and potential alternatives for the employee’s reasonable accommodation (unless these measures would impose a disproportionate burden on the employer). It is important to note that had the employer fully considered these possibilities or potential alternatives the Labour Court held and the High Court agreed that “it might or it might not have concluded they were viable, reasonable and proportionate in the circumstances prevailing”. 

[1] Nano Nagle School v Marie Daly [2015] IEHC 785

About the author

Edel Kennedy is an Associate in the Employment Law and Benefits Team of Mason Hayes & Curran. Edel offers an experienced, solution-focused approach to clients from a wide range of sectors including retail, educational sector, public sector, manufacturing, and information technology. Edel is regularly involved in representing clients in actions for breach of contract, employer liability claims and personal injury cases for bullying. Edel also advises clients on all employment issues including grievances, trade disputes, disciplinary investigations and proceedings, the termination of employment, and complaints of bullying or harassment.

For the last three years, Edel has delivered workshops on the Law Society’s Diploma course and tutored for the solicitor training course.