Employment Law Precedents: Nano Nagle School v Marie Daly [2018] IECA 11

This article examines a recent decision of the Court of Appeal dated 31^st January 2018 in the case of Nano Nagle School, Appellant, v. Marie Daly, Respondent,  [2018] IECA 11.

Why is this case important for employers?

The Court of Appeal in this case examined the interpretation of Section 16 of the Employment Equality Act 1998 as amended, concerning the scope of the obligation on employers to provide reasonable accommodation for employees with a disability in certain circumstances.  The case provides guidance on when it may be reasonable for an employer to determine that it may be open to them to terminate an employee’s employment due to incapacity.

Where is the statutory obligation on employers set out?

Section 16(1) of the Employment Equality Act 1998 as amended states that nothing in the Act is to be construed as "requiring any person to…retain an individual in a position…if the individual …is not (or, as the case may be, no longer) 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."

In accordance with s.16 (3)(a) the employee is considered as fully competent to undertake, and fully capable of undertaking, any duties if, the employee would be so fully competent and capable on appropriate measures being provided by the employer.

What is the background to this case?

Ms. Daly, the Respondent before the Court of Appeal, was a Special Needs Assistant (SNA) employed by the Applicant school, from 1998 onwards.  Unfortunately, Ms. Daly suffered life-changing injuries as a result of a road traffic accident in 2010. She underwent a long period of treatment and rehabilitation, but she was still left with significant disability, in that she was confined to a wheelchair because of paraplegia.

Ms. Daly wanted to return to work and, supported by her treating doctors, she approached the school in that regard in January 2011. The school sought advice from experts including an occupational health physician and experts in risk assessment and occupational therapy/ergonomics. In light of those reports, the school concluded that Ms. Daly did not have the capacity to carry out the duties associated with an SNA, therefore, it was not possible for her to return to work.

Ms. Daly complained that the school had failed to provide appropriate measures to enable her, as a person with a disability to return to work, contrary to the Employment Equality Acts 1998 as amended.

Ms. Daly’s complaint was considered in turn by the Equality Tribunal which dismissed her claim; by the Labour Court, which allowed her appeal and awarded her compensation; by the High Court, which upheld the Labour Court decision and ultimately the matter came before the Court of Appeal by way of an appeal by the Applicant, Nano Nagle School, from the decision of the High Court.

The Equality Tribunal decision

Before the Equality Tribunal, the position of the school was that a large part of the job of an SNA were beyond Ms. Daly’s capabilities and the only possibility of her remaining in the employment of the school was if funding was obtained for a floating SNA, in addition to the full complement of staff funded at that time. The school had enquired about funding but were informed that it could not be sanctioned because SNA staff are provided for the benefit of students, not for the benefit of the staff. The Equality Tribunal found that, Ms. Daly was no longer capable of undertaking her duties and as such the provisions of s.16(1) of the 1998 Act applied. That section provides that nothing in the Acts shall be construed as requiring an employer to retain an individual who is no longer fully capable of performing their duties. As a result, the Equality Tribunal found in favour of the school.

The Labour Court decision

Ms. Daly appealed to the Labour Court, who found in her favour. The Labour Court decided that the school failed to discharge its statutory duty to provide her with reasonable accommodation, so as to allow her to continue in employment. Whilst the Labour Court didn’t find that Ms. Daly was competent to carry out the duties of an SNA at the school, they did find that the school had a duty to fully consider the viability of a re-organisation of work and a re-distribution of her tasks among the other SNAs in the school, in order to relieve Ms. Daly of the duties she was no longer capable of performing. The Labour Court was of the view that the school was in breach of its statutory duties for its failure to consider a re-allocation of Ms. Daly’s tasks as an SNA.

The Labour Court rejected a submission by the school that the wording of the legislation meant that it was not required to continue the person in employment if they couldn’t fully discharge the duties of the job that they held prior to the disability.

The Labour Court referred to earlier decisions where it had opined that  “a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation.”

The High Court decision

The High Court, on appeal, upheld the Labour Court’s rejection of the school’s interpretation of s.16 and implicitly endorsed the test applied by the Labour Court to decide the issue.

Noonan J. in the High Court expressed the view that the Labour Court was perfectly entitled to reach the conclusion that there had been no adequate consideration or evaluation of the option of re-allocation of Ms. Daly’s tasks by the school and a cursory enquiry about funding, the content of which was never precisely determined, was an insufficient effort on the part of the school to comply with its statutory obligation.

The school then appealed the decision of the High Court to the Court of Appeal.

Court of Appeal - What were the grounds of appeal relied on by the school?

The school appealed to the Court of Appeal on four grounds,

1. That the High Court erred in its determination and application of the principles concerning incorrect findings of fact in appeals on a point of law.
2. That the High Court erred in its interpretation of s.16, in its analysis and application of relevant EU case law and Directives, and in upholding the analysis of the Labour Court on section 16.
3. That the High Court erred in finding and in upholding the Labour Court’s finding that the school failed to consider reorganising the role of SNAs.
4. That the High Court erred in their interpretation of the Irish case law in relation to reasonable accommodation, his analysis of the school’s attempts to afford reasonable accommodation to the employee, and also erred in upholding the Labour Court determination of those issues.

In response, Ms. Daly submitted that the school never considered in any meaningful or serious way, making any adjustments to the actual nature of the role being performed by her. The Respondent contended that the school took a misinformed view of its legal obligations, in particular, that if Ms. Daly was unable to perform all of the duties of her role, then they were under no obligation to consider accommodating her. She submitted that the Labour Court’s finding was correctly upheld by the High Court.

What was the view of the Court of Appeal?

Ryan P. was of the view that section 16 does envisage some distribution of tasks and time adjustments. Ryan P. found it reasonable to suggest that tasks which are not essential to the position may be considered for distribution. The Court held that, on a legitimate and reasonable interpretation, such redistribution must be attempted, no matter how unrealistic the proposal. However, s.16 requires full competence as regards tasks that are the essence of the position, otherwise s.16(1) would be ineffective. The Court held that the Labour Court was in error in dismissing the school’s submission that the floating SNA position required the creation of a new role. Evidence was given by the school to the effect that funding for a new floating role was refused. The Court found that the school made its decision based on the reports and in light of the funding refusal.

The Court agreed that the decision had to be made in the interests of the whole school community, primarily the children whose care was entrusted in the school. Ryan P. held that the Labour Court’s failure to address these matters undermined the validity of its analysis and served to highlight the error of its approach in focussing on Ms. Daly’s position, in exclusion of other legitimate interests which the school had to accommodate.

For the same reasons, Ryan P. disagreed with the decision of Noonan J. in the High Court. Ryan P. stated that the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter.

Ryan P. stated that the central reality in the case was that Ms Daly was “unable to perform the essential tasks of a Special Needs Assistant in this particular school. No accommodations can change that, unfortunately. Neither is it suggested otherwise.”

In her judgement, Finlay Geoghegan J. included some comments on the proper construction of s.16. Finlay Geoghegan J. stated that s.16 was enacted to give effect to Council Directive 2000/78, which was intended to establish a general framework for equal treatment in employment and occupation. Therefore s.16 must be construed, insofar as its wording permits, in a manner consistent with the Directive.

She stated:

“ The obligation imposed on an employer by s.16 (3)(b) in the context of the limitation in s.16(1) means that an employer is only obliged to retain in a position a employee with a disability who is fully competent and capable of performing all the duties (subject probably to such duties being properly considered as essential functions) of the position concerned. However, in accordance with s.16(3)(a) the employee is considered as fully competent to undertake, and fully capable of undertaking, any duties if, the employee would be so fully competent and capable on appropriate measures being provided by the employer. Hence the employer is obliged, where an employee with a disability is unable or not competent or capable of performing certain duties attached to a position to consider whether there are appropriate measures which may be taken which would enable the employee be considered as fully competent and capable of performing the duty or duties in question attached to the position. That consideration, depending on the duty involved might include the distribution of one or more tasks associated with the duty to another employee.”

The Court held that it is correct to construe the obligation placed on an employer to take appropriate measures as potentially including an obligation to consider a distribution of certain tasks. However, whether it is obliged to do so in a given situation will be fact dependent, in particular, whether the tasks in question are or are not all the essential tasks required of the employee.

Birmingham J. concurred with the judgements of both Ryan P. and Finlay Geoghegan J.

What was the decision of the Court of Appeal?

The school’s appeal was allowed. The decision of the Labour Court, which was upheld by the High Court, was overturned and the award of compensation vacated.

What are the implications of this decision for employers?

This is a significant decision on the scope of employers’ obligations to provide reasonable accommodation for employees with a disability and when termination due to incapacity may be validly considered by an employer. 

Whilst an employer is bound to attempt re-distribution of tasks to accommodate a disabled employee, they are not required to do so for all tasks. An employer should consider re-distribution of tasks only where the tasks are non-essential to the role. If the employee cannot undertake the essential tasks of the role then this may be grounds for termination of the employee’s employment. 

This case also suggests that, in considering reasonable accommodation for an employee with a disability, an employer is entitled to take into account other legitimate interests which they may also have to accommodate.

It should be remembered that it is vital that an employer obtains appropriate expert opinion before making any decision in relation to whether or not reasonable accommodation can be made and/or where the question of possible termination of an employee’s employment due to incapacity arises.  An employer must act reasonably and, in addition, fair procedures mean that the input of the employee in question should also always be sought prior to any decision being taken.