by Michael Doyle, Associate, Employment, Pensions & Incentives at A&L Goodbody
The Supreme Court, weighing in on the legal saga relating to Daly v Nano Nagle School, has clarified the extent of an employer’s duty to reasonably accommodate a disabled employee. Rowing back from last year’s Court of Appeal decision, the Supreme Court appears to have imposed a more onerous burden on employers.
Significantly, the Supreme Court has confirmed that, when considering reasonable accommodation, there is no distinction to be made between core “duties” and non-core “tasks” attached to a particular role. A reasonable employer will be required to demonstrate that all “appropriate measures” to facilitate such a disabled individual were taken – limited only by the extent to which such a measure would constitute a “disproportionate burden” on that employer.
So where are we now? Just how far is far enough when it comes to an employer’s duty to reasonably accommodate a disabled individual in the workplace?
What does the law say?
Section 16 of the Employment Equality Acts 1998 – 2015 requires employers to take “appropriate measures” to facilitate persons with disabilities in accessing and participating in employment. The only caveat obligation is that such measures should not place a “disproportionate burden” on that employer by considering the cost involved in implementing the measure. alongside This includes the resources of the employer and the possibility of public funding being provided.
Employers are not required to recruit, promote, retain or train an individual who “is not capable of undertaking the duties attached to that position”
What did the Court of Appeal decide?
The Court of Appeal overturned a decision of the High Court that a school had failed to reasonably accommodate a paraplegic Special Needs Assistant (SNA).
The key takeaway of the Court of Appeal decision was its focus on the distinction between non-core “tasks” and core “duties“. In assessing the extent of an employer’s duty to reasonably accommodate, the Court concluded that an employer must consider the redistribution of non-core tasks but is not required to consider redistributing core duties of the role.
What did the Supreme Court decide?
(1) Should a distinction be drawn between non-core tasks and core duties of a role?
In a fundamental about turn, the Supreme Court did not agree with the Court of Appeal’s distinction between non-core tasks and core duties (or essential functions), when considering whether an employer had discharged its duty to reasonably accommodate. The Supreme Court held that all “appropriate measures” were to be considered.
A decision by the employer not to implement any such measure could only be on the basis that it constituted a “disproportionate burden” – not whether the measure impacted the essential duties of the role under review.
Despite initial appearances, this decision does not require employers to exceed the realm of reasonableness. Significantly, and of some reassurance to employers, the Court held that an employer “cannot be under a duty to entirely re-designate or create a different job“. The Court went on to state that to create a new job would “almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden.”
(2) Is employee consultation required?
The Court of Appeal’s decision indicated that, in the context of reasonable accommodation, engagement and consultation with the affected employee is not legally required. The Supreme Court has somewhat stepped back from this view and re-endorsed the seminal position set out in Humphries v Westwood. Although the Court did not definitively require employers to engage and consult with employees, the judgment provided that “a wise employer will provide meaningful participation” as part of the consideration of appropriate measures.
Key takeaways for employers
In considering reasonable accommodation of a disabled individual in the workplace, a prudent employer should:
- Objectively evaluate appropriate measures could be put in place to facilitate that individual – an employer should be able to demonstrate that any decision not to implement a particular measure is on the basis that it would represent a disproportionate burden
- Consider the redistribution of both core duties and non-core tasks
- Be fully informed by up-to-date expert medical advice – the Court in Nano Nagle referred to the Occupational Therapist report as “one of the evidential keystones of the case“
- Though not necessarily mandatory, engage and consult with the affected employee
The Supreme Court’s judgment rows back from the Court of Appeal decision, which means employers are required to consider a redistribution of core duties as well as more tangential tasks associated with a role, but that an employer does not need to create a new role.
While clarity on the extent of an employer’s obligation to reasonably accommodate individuals with disabilities is welcomed, it may be difficult for an employer to draw a line between implementing appropriate measures and ultimately creating a new role. The issue to be addressed will be at what point the extent of an employer’s duty tips the balance from the provision of reasonable accommodation to becoming a disproportionate burden. There is no one-size fits all approach and employers will need to approach each scenario on a case by case basis.
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.