The Supreme Court has ruled that the Labour Court must reconsider the case of Marie Daly, a Special Needs Assistant (SNA) who was deemed incapable of returning to work by her employer after being paralysed in a car accident.
History of the case
Marie Daly was employed by the Nano Nagle School in Listowel, Co Kerry as an SNA from 1998 and provided essential services to children with complex needs, including physical, intellectual, and behavioural challenges. In 2010 she suffered serious injuries in a road traffic accident which left her paralysed from the waist down. Following her rehabilitation, Ms Daly intended to return to her work and contacted the school in 2011 about resuming her position.
The school commissioned an assessment from an occupational therapist who reported that Ms Daly would be unable to perform 7 out of 16 tasks that are required to carry out the role, and in particular the more physical elements of the role. The occupational therapy expert suggested that Ms Daly would be suitable for the role of ‘floating’ SNA whereby she would be confined to those tasks that she was physically able to perform. The more physical elements would be redistributed to the other SNAs.
The school informed Ms Daly that the role of floating SNA was not available at the school. They had contacted its funding body, the National Council for Special Education (NCSE), who advised that there was no funding available for such a position. The school concluded that as she was no longer capable of doing the job she was employed to do, her position would be terminated.
Ms Daly initiated legal proceedings against the school on the basis that it had breached the Employment Equality Acts, 1998 – 2015 by failing to provide reasonable accommodations or appropriate measures that would allow her to return to work.
Long-running litigation
Ms Daly’s case was first heard by the Equality Tribunal which found in favour of the school. Ms Daly appealed to the Labour Court which ordered the school to pay her €40,000 in compensation. This was primarily due to the school’s failure to consult with Ms Daly prior to rejecting the floating SNA suggestion and their failure to adequately consider this method of reasonable accommodation. The school was unsuccessful with its appeal of the Labour Court decision to the High Court.
The High Court ruled that the school’s failure to consider a redistribution of Ms Daly’s duties amounted to a failure to discharge its obligations under employment equality legislation. Under the High Court interpretation of the law, the school was guilty of discrimination for its failure to properly consider the proposed method of reasonable accommodation notwithstanding that the proposed measure would not render the disabled employee fully capable of taking up the role.
The Court of Appeal last year overturned the High Court ruling in determining that the statutory duty to reasonably accommodate a disabled employee does not require an employer to employ a person in a position if they are not capable of performing the essential duties of that position.
Supreme Court ruling
The Supreme Court has overturned the Court of Appeal and has reluctantly sent the matter back to the Labour Court. The Labour Court is now required to rehear the matter in light of the Supreme Court’s findings and its interpretation of the Employment Equality Acts.
Evidential issues
The Supreme Court identified concerns that none of the hearings focused on the school’s communications with the NCSE. The school contacted the NCSE in relation to a funding request to support Ms Daly’s proposed accommodations. The notes from that telephone call outlined that the school was informed that the NCSE “appoints staff for children with disabilities and not for adults.” The school (and the Equality Tribunal) took this to mean that the funding was available for educating child students with disabilities and not for their adult teachers, and therefore there was no funding for the floating SNA role.
However, Ms Daly (and the Labour Court) were of the view that this statement was ambiguous as it could equally mean that the funding is for educating child students and not for educating adult students, and as Ms Daly did not educate adult students there may in fact have been NCSE funding available for the floating SNA role.
The Supreme Court considered it important that the Labour Court considers the precise meaning of this communication with the NCSE. The Supreme Court also ordered the Labour Court to address the report of the Occupational Therapist in full and the legal consequences of it.
Interpretation of section 16 of the Employment Equality Acts 1998 - 2015
The ultimate legal question which the Supreme Court returned to the Labour Court is the extent to which Ms Daly, even with reasonable accommodation, can return to the position of an SNA. In that respect, in a lengthy judgment, the Supreme Court made the following comments on the interpretation of section 16 of the Employment Equality Acts 1998 – 2015.
- There is no ‘free-standing’ obligation on an employer to consider reasonable accommodation. The duty to provide reasonable accommodations or implement appropriate measures must be viewed against the requirement that the employee be fully competent to perform the duties of the job. If after reasonable accommodation an employee remains unable to fully undertake the duties attached to the position, there can be no finding of discrimination.
- The Supreme Court noted the tension between the terms “duties” and “tasks” which previous hearings had focused on. The Supreme Court was of the view that reasonable accommodation can involve both the removal and distribution of non-essential tasks and/or essential duties provided it is not disproportionate in the context of the employment in question.
- Section 16(1) of the Act refers specifically to “the position” and not to an “alternative and quite different position.” The Supreme Court ruled that it would be a disproportionate burden on the employer if the employee was accommodated to the extent that she would essentially be doing a new job. To illustrate its point, the Supreme Court gave the following example; “there is no obligation to redefine the employment of an airline pilot as an airline steward, or vice versa.”
- Employers are obliged under section 16 (3)(d) to explore “the possibility of obtaining public funding or other assistance” when considering reasonable accommodation measures. The Supreme Court found that the school had not discharged this mandatory obligation by making a phone call to the NCSE. This was particularly the case as there was some confusion as to what the NCSE had said to the school, as detailed above.
- The Supreme Court confirmed that employers have a statutory duty to carry out a consultation process with other employees on the redistribution of tasks unless carrying out such a process would be unduly burdensome. If consultation with other employees is not carried out regarding the suggestion that work is redistributed among them, it is essential that an employer can objectively demonstrate that it gave the question of redistribution its full consideration.
- The Supreme Court concluded that it is not discriminatory for an employer to fail to adequately consult with an employee in the context of a medical dismissal. The court did, however, state that a “wise employer will provide meaningful participation” to satisfy this duty. While the absence of consultation will not, in itself, constitute discrimination it is strongly advocated that consultation takes place as part of the process leading to a medical dismissal.
What does the Supreme Court judgment mean for employers?
As the case remains open, it is not yet clear what the Labour Court will ultimately decide. This long-running case highlights the strong protections enjoyed by employees under employment equality laws. While the clarification of the law by the Supreme Court is welcome, the issue of providing reasonable accommodations to disabled employees remains a complex area which many SMEs may not have the expertise to handle.
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