There has been much debate surrounding what constitutes ‘reasonable accommodation’ for employees with a disability. A recent landmark Supreme Court decision, Nano Nagle School v Marie Daly, addressed three of the main issues in its decision, as follows;
Section 16 – Tasks v Duties:
Section 16(1) of the Act provides that an employer is not required to retain an individual in employment if that person is no longer fully competent to undertake their duties.
The Court emphasised that this provision cannot be read in isolation and that section 16 of the Act must be read in its entirety. In particular it noted that s.16(1) must be read in harmony with s.16(3) which provides a duty on an employer to make ‘reasonable accommodation’ and to take ‘appropriate measures’ to facilitate an employee maintaining their position with a disability.
What constituted an ‘appropriate measure’ was always a matter for the courts to decide and up until now the courts had taken the view that a delegation of ‘tasks’ was considered an ‘appropriate measure’ but that delegation of ‘duties’ went beyond this. The Supreme Court emphasised that there is no real distinction between tasks and duties. Accordingly, there is no reason why certain duties cannot be removed or ‘stripped out’ once it doesn’t place a disproportionate burden on an employer. The test must be one of fact, reasonableness and proportionality and the duty of determining what is reasonable accommodation is one for the deciding tribunal.
Free-standing Obligation:
The Court was critical of the Labour Court’s finding that there existed a ‘free-standing’ obligation on an employer to carry out an evaluation of all the available options, irrespective of whether the employee is capable of doing the job. The Supreme Court held that an obligation is not free-standing, and failure of compliance will not, in itself, give rise to compensation. The Court emphasised there is no mandatory duty of consultation with an employee in each and every case and the Act does not provide for compensation simply by the absence of consultation as this could not in itself constitute discrimination under s.8 of the Act. The Court observed however that a wise employer will provide meaningful participation in vindication of his duty under the Act.
United Nations Convention on the Rights of Persons with Disabilities:
The Court addressed the applicability of EU law to the case and noted that the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) was approved by the EU Community and ratified by Ireland in 2018. It stated that in accordance with Article 261(2) TFEU, international agreements such at the CRPD were binding on its institutions and therefore prevailed over Acts of the European Union. Accordingly, any EU Directives which relate to disability one to be interpreted in harmony with the U.N Convention and more specifically that the EU concept of disability was explicitly aligned with the CRPD.
Conclusion:
The decision offers some clarity and guidance for both employers and employees and highlights the importance of the following key points:-
- There is no free-standing obligation on employers to consider the viability of re-organisation of work and redistribution of tasks among other employees;
- There is no duty to create a different position to accommodate an employee with a disability;
- There is no distinction to be made between ‘tasks’ and ‘duties’;
- An employer can delegate duties to another employee;
- The UNCRPD is applicable and prevails over Acts of the European Union.
If you would like more information on this topic, contact David Pearson, Partner at dpearson@jwod.ie or 021 7300200.