Supreme Court: Labour Court must reconsider disability discrimination case
The Supreme Court has held that the Employment Equality Acts requires the distribution of essential duties must be considered as part of a “reasonable accommodation” to accommodate employees with a disability, and that the Court of Appeal erred in making a distinction between “tasks” and “duties” when interpreting the legislation.
Finding that the “approach adopted in each earlier legal forum was erroneous”, Mr Justice John MacMenamin said it was appropriate to remit the case back to the Labour Court.
In 1998, Marie Daly began working as a special needs assistant in Nano Nagle School in Co Kerry, which caters for children on the autistic spectrum and those with mild to profound disabilities.
In July 2010, Ms Daly was very seriously injured in an accident while on holiday, and as a result, she was paralysed from the waist down and has to use a wheelchair.
In 2011, Ms Daly was anxious to return to work, however, after an assessment, the school board refused Ms Daly permission to return to work.
Ms Daly brought an application under s.83 of the Employment Equality Acts 1998-2011 to the Equality Tribunal (now the Workplace Relations Commission). Ms Daly claimed that the school’s decision amounted to unlawful discrimination under sections 6, 8 and 16 of the Act, and that the school had failed to comply with its statutory duty under s.16(3) and (4) to provide “reasonable accommodation” or “appropriate measures” to accommodate her disability and allow her to return to work.
In December 2013, the Equality Officer found that Ms Daly was no longer fully competent and available to undertake, and no longer fully capable of undertaking, the duties attached to the position. He found that the school was entitled to rely on s.16(3) as a defence as the “appropriate measures” to enable Ms Daly’s return to work were “a cost other than a nominal cost” – in this regard, Mr Justice MacMenamin said it appeared the officer was under a misapprehension as to the applicable law given that the “nominal cost” test had been removed by the Equality Act 2004. The Officer held that the school had a good defence on the basis of incapacity, that there was no discrimination, and Ms Daly was not entitled to any remedy.
The Labour Court reversed this decision, finding that there had been a failure to comply with section 16(3), and that the school failed to consult with Ms Daly in making its decision on the question of “reasonable accommodation”. Consequently, Ms Daly was awarded €40,000.
The High Court upheld the decision of the Labour Court, however, in January 2018, the Court of Appeal reversed the decision of the High Court.
Mr Justice MacMenamin (Justices O’Donnell, Dunne, and O’Malley concurring) said the appeal raised the issue of tension between the “duties” involved in a particular post and the “tasks” which may be distributed or redistributed by way of “reasonable accommodation”.
Describing the appeal as raising issues of significant importance, not only to Ms Daly, but in the broader field of disability law, Mr Justice MacMenamin said the Irish Human Rights and Equality Commission made helpful written and oral submissions to the Court.
Mr Justice MacMenamin said the fundamental issue in this case arose because of the way in which s.16(1) and (3) are sequenced – in the Court of Appeal it was held that s.16(3) must be seen as being subject to the contents of s.16(1).
The school submitted that this must mean that a court of tribunal must first look to s.16(1) in order to assess the main duties of a position, and thereafter determine whether on “reasonable accommodation” under s.16(3) an employee was fully competent or capable of undertaking these main duties. On that reading, if the disabled person remains unable to perform these main duties after reasonable accommodation, then there is a full defence.
The school submitted that it had the duties associated with a special needs assistant assessed by an expert, who identified 16 duties – Ms Daly could wholly or partly perform 9 duties, and was unable to perform 7. As such, the school said the Court of Appeal was correct in holding that no adaption or accommodation could make Ms Daly able to carry out the job, and that there was no requirement under the legislation to “strip away” some duties. This, it was argued, would be to create an entirely new position.
The legislation does, however, provide for “appropriate measures”, including “distribution of tasks”.
In the Court of Appeal, the word “tasks” were held to have a different connotation to “duties” – in that an employer is obliged to consider only the distribution of tasks, rather than core duties essential to the job. Mr Justice MacMenamin said he did not agree with the distinction. He said the duty to “reasonably accommodate” or to take “appropriate measures”, where needed, is laid down in s.16(3) in order for a person with a disability to have “access to employment”, unless the measure would impose a disproportionate burden on the employer.
Mr Justice MacMenamin said the term “distribution of tasks” was illustrative in nature, and may guide interpretation, but should not curtail or expand the meaning of the section. He said it did not “derogate, or subtract, from the more general duty to be found in s.16(4)(a), to provide ‘effective and practical measures’ where needed in a particular case, to adapt the place of business to the disability concerned. The sub-section is not to be interpreted as undermining or eroding the main purpose set out in s.16(3)(a) which is to hold that a person with a disability is fully competent to undertake any duties, if they would be so competent and capable on reasonable accommodation being provided by the employer, provided that it is not disproportionate… What is required by the section, read in its entirety, is that consideration be given to distribution of essential duties, as part of a reasonable accommodation”.
Stating that the question of remedy was “constrained by the fact that the approach adopted in each earlier legal forum was erroneous” Mr Justice MacMenamin remitted the case to the Labour Court. He said the “ultimate legal question| was the extent to which it can be said that, even with reasonable accommodation, Ms Daly can return to her position – that this was what s.16(1) provides for in this type of case. He said the Court would “have to provide a reasoned basis for any award of compensation, having regard to the principles of rationality and proportionality, and the appellant’s employment status. The scope of the inquiry is limited to whether the appellant was, in fact, the subject of unlawful discrimination, and, if so, what was the precise nature of that discrimination?”
Dissenting from the majority on the result proposed, Mr Justice Peter Charleton said the order of the Court of Appeal should be upheld.
- by Seosamh Gráinséir for Irish Legal News
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