Duty to Reasonably Accommodate Disabled Employees: Court of Appeal clarifies the law

by Michael Doyle, Associate, Employment, Pensions & Incentives at A&L Goodbody

The Court of Appeal recently delivered judgment(1) in a long running disability discrimination case which is noteworthy from an employer’s perspective. The judgment brings clarity to the law on the extent of an employer’s statutory duty to reasonably accommodate disabled employees.

In overturning the High Court judgment in Daly v Nano Nagle School(2), which was widely considered the seminal judgment on the law in this area, the Court of Appeal has confirmed that the statutory duty to reasonably accommodate a disabled employee is not as onerous as previously understood.

Significantly, the Court of Appeal confirmed that the obligation does not extend to requiring an employer to employ a person in a position if they are not able to perform the essential duties of that position.

The Court has also clarified that an employer will not fall foul of its statutory obligations merely by having failed to carry out an exhaustive examination as to whether or not an employee with a disability can be reasonably accommodated.

Duty to Reasonably Accommodate
Section 16 of the Employment Equality Acts (1998 – 2015) obliges employers, subject to it not being a disproportionate burden, to take appropriate measures to enable a disabled employee undertake the essential duties of their position. The section does not require employers to retain a disabled employee in a position where the employee is, despite such measures being taken, not “fully competent to undertake and capable of undertaking” the duties of that position.

High Court Decision
In our previous client update on the Nano Nagle case we outlined the background facts, the rationale for the High Court’s decision and the implications of the case for employers.

In summary, the High Court affirmed a decision of the Labour Court which awarded a paraplegic Special Needs Assistant €40,000 compensation in respect of the school’s failure to reasonably accommodate her. The High Court specifically found that by failing to adequately consider a redistribution of her duties as a Special Needs Assistant, the school had failed to discharge its statutory obligations.

At the time we observed that the High Court decision suggested employers had to actively explore and consider any and all potential accommodations that could be put in place in order to ensure they could safely say they had discharged their statutory obligations. As the Court of Appeal has now overturned the High Court’s decision, it is necessary to reassess the extent of an employer’s obligations when it comes to accommodating disabled employees in the workplace.

Court of Appeal lays down the law
In overturning the High Court’s decision, the Court of Appeal honed in on the literal language of Section 16 and analysed whether the requirements, as set down in that section, had been discharged on the facts of the case. As the Court concluded that the claimant could not perform the essential tasks of a Special Needs Assistant, regardless of the accommodations put in place, it found the school had not failed to reasonably accommodate her.

The Court emphasised that the statutory duty requires an employer to objectively assess whether reasonable accommodations can be made to enable a disabled employee perform the essential duties of their role, which they would otherwise be unable to perform. The quality or otherwise of the enquiry process is ultimately not relevant to determining whether that statutory obligation has been discharged.

Key Takeaways for Employers
Absent an appeal to the Supreme Court, which is considered unlikely, not least due to the restrictions on such appeals being permitted; this judgment provides a definitive interpretation of the law on an employer’s duty to reasonably accommodate disabled employees. The upshot from an employer’s perspective is that the duty is less onerous than previously understood.

The key takeaways from the Court of Appeal judgment are as follows:

• An employer must consider the redistribution of non-core duties/tasks that a disabled employee is unable to perform, even with the provision of reasonable accommodations. However, this does not extend to the removal of core duties/tasks.
• Employers must be in a position to objectively justify the characterisation of duties as ‘essential duties’ of a role, particularly if they are going to dismiss a disabled employee on the grounds that they are not fully competent and capable of undertaking those duties.
• An employer will not have failed to reasonably accommodate a disabled employee even if they do not consult the employee in the course of their evaluation of the accommodations required to be put in place for that individual.
• An employer is not required to create a new position for an employee who, even with reasonable accommodations, is not in a position to perform the essential duties of the position they are employed to perform.
• An employer must objectively evaluate what, if any, reasonable accommodations can be put in place and that process needs to be informed by expert medical advice and should be documented.
• An employer is not obliged to retain a disabled employee who is not fully competent and capable of performing the essential duties of the position concerned. The fact that the employee might, with reasonable accommodations, be in a position to perform some, but not all, of the essential duties is not sufficient.

Conclusion
The very fact that the hearing before the Court of Appeal marked the fourth occasion on which consideration was given to the correct interpretation of section 16 in this case highlights the need for judicial clarity in this area. That clarity has now been brought and that is to be welcomed from employers and employees’ perspectives alike.

While the Court of Appeal judgment makes clear that the duty to reasonably accommodate disabled employees is not as onerous as previously understood, employers should not be under the illusion that this judgment grants them carte blanche when it comes to considering whether or not reasonable accommodations can be put in place. Employers will still need to act prudently, rely on expert medical advice and document their decision making processes in discharging their statutory obligations. While arguably not legally required, it is recommended that employers engage and consult with disabled employees as part of their evaluation processes and genuinely consider any suggestions made by those employees or their medical advisers.

A final word of caution: an employee who is dismissed on the grounds of medical incapability may, instead of bringing a discriminatory dismissal claim, challenge their dismissal under the Unfair Dismissals Acts. Compliance with section 16 does not relieve an employer from liability under the Unfair Dismissals Acts, in the way it does under the Employment Equality Acts. It is therefore important that an employer who dismisses an employee on the grounds of medical incapability is in a position to demonstrate that up-to-date medical evidence supported their conclusion, that the employee was on notice of their proposed dismissal and that they have had an opportunity to influence the ultimate decision prior to it being made.

1 [2016] CoA No. 67
2 [2015] IEHC 785

About the author
Michael acts for a wide range of employers in the private and public sectors on all aspects of contentious and non-contentious employment law and industrial relations matters. He regularly advises employers on disciplinary, grievance and bullying/harassment processes, termination of employment and related litigation, individual and collective redundancies and compliance with employment equality, fixed-term and agency worker legislation. Michael has considerable experience of advising on the employment aspects of commercial transactions and outsourcings. He is a proponent of alternative dispute resolution and has participated in a number of mediations, including mediations of contentious shareholder disputes involving employee shareholders.