Court allows appeal where employer failed to consider all options for reasonable accommodation for a disabled employee.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 11

[2016 No. 67]

The President

Finlay Geoghegan J.

Birmingham J.

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACTS 1998-2011 ON THE APPLICATION OF NANO NAGLE SCHOOL

AN APPEAL PURSUANT TO SECTION 90(1) AGAINST TERMINATION EDA 1430 BY THE LABOUR COURT DATED 12TH AUGUST

2014

BETWEEN

NANO NAGLE SCHOOL

APPELLANT

AND

MARIE DALY

RESPONDENT

JUDGMENT of the President delivered on 31st January 2018

Introduction

1. This appeal by Nano Nagle School from the judgment of the High Court delivered by Noonan J. on 11th December 2015 is episode

four of a saga of litigation arising from an unfortunate dispute concerning the capability of an enthusiastic disabled employee to work

in a school providing essential services to children who face physical, intellectual and behavioural challenges.

2. Ms. Marie Daly was a Special Needs Assistant on the staff of the Nano Nagle School in Killarney from 1998 until she sustained

severe injuries in a road traffic accident in 2010. After a long period of treatment and rehabilitation, she achieved a partial recovery,

but she was left with significant disability, being confined to a wheelchair because of paraplegia. She was keen to get back to work

and believed that she would be able for it and her doctors encouraged her to do so. She approached the school in January 2011 with

a view to doing that. The school sought advice from experts, including an occupational health physician and experts in risk

assessment and occupational therapy/ergonomics. In light of these reports, the Board of the school concluded that Ms. Daly did not

have the capacity to undertake the duties associated with a Special Needs Assistant and that it would not be possible for her to

return to work at the school. Ms. Daly complained to the Equality Tribunal on the ground 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 to

2011.

3. The appeal concerns the interpretation and application of s. 16 of the Employment Equality Act (as amended) which provides

statutory protection against discrimination in the workplace. The 2004 Amending Act brings into legislative form the provisions of

Council Directive 2000/78/EC which declares in Recital (16) that such measures play an important role in combating discrimination on

grounds of disability.

4. Section 16 of the Employment Equality Act 1998, as amended, provides as follows:

(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to

retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the

individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will

not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be

required to be, performed, or

(b) is not (or, as the case may be, is 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.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a

position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment

in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation

controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) (a) For the purposes of this section, a person who has a disability is fully competent to undertake, and fully capable

of undertaking, any duties if, the person would be so fully competent and capable on reasonable accommodation (in this

subsection referred to as “appropriate measures”) being provided by the person’s employer.

(b) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a

disability -

(i) To have access to employment

(ii) To participate and advance in employment,

(iii) To undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of –

(i) The financial and other costs entailed.

(ii) The scale and financial resources of the employer’s business and

(iii) The possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

“employer” includes an employment agency, a person offering a course of vocational training as mentioned in

section 12 (1) and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as referred to in paragraphs (a) to

(c) of section 12 (1), and

(c) such a person who is a member of or is seeking membership of the regulatory body;

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's

place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and

equipment, patterns of working time, distribution of tasks or the provision of training or integration

resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably

provide for himself or herself;”

5. The dispute has been considered in turn by the Equality Tribunal which dismissed Ms. Daly’s claim; by the Labour Court, which

allowed her appeal and awarded compensation; by the High Court, which upheld the Labour Court and now by this Court on appeal

from the judgment of Noonan J.

The Equality Officer’s Decision

6. Ms. Daly’s case was that the school failed to take reasonable or appropriate measures to facilitate her return to work and that she

was quite capable of fulfilling a role with the school as an SNA and a secretary. The school’s case was that SNAs had to work in pairs

in the school because of the sort of pupils that it catered for. The bulk of the jobs of the SNA position were beyond Ms. Daly’s ability

and so the only option for her to remain in employment with the school was if funding could be obtained for a floating SNA in addition

to the staff complement funded at the time. The school submitted that it made enquiries to see if such funding for a floating SNA

could be obtained, but the response was that SNAs are provided for the benefit of the pupils and not for the benefit of the staff, and

accordingly, funding for a floating SNA could not be sanctioned.

7. The Equality Officer was satisfied that the school is a special needs school, caring for students with moderate, severe and

profound disability. The number of students with severe or profound disability, including elements of behavioural difficulties, is high.

The role of an SNA in this type of environment is not exactly comparable to the role of an SNA in a more mainstream school.

8. The Equality Officer noted that there were no areas of contention surrounding the relevant issues. When the complainant sought

to return to work, the school sent her for assessment by an occupational health physician, who recommended an independent risk

assessment. He was not satisfied with the details in the risk assessment and suggested that a second risk assessment be carried out.

The school conferred with Ms. Daly and engaged an ergonomics/occupational therapist consultant nominated by her to undertake the

second risk assessment. This consultant was familiar with the complainant disability, having worked with her during her recuperation

period. This is a reference to Ms. Ina McGrath and the fact that she knew Ms. Daly because she had worked with her during her

period of recuperation. Ms. McGrath’s report to the school and evidence to the Labour Court are important features of the case as

later appear.

9. The Equality Officer recorded the evidence of the Principal of the school that she had sought funding for a floating SNA, but had

been informed that SNAs were provided to enable the care of children, not of adults. The school’s budget was externally controlled

and the Principal was not able to fund a floating position. The Officer considered a recent determination of the Labour Court in

Shannon Regional Fisheries Board and A Worker (Determination EDA 1318) from which he cited the following passage:

“The general principles set out in Humphries v. Westwood Fitness Club require an employer to make a bona fide and

informed decision concerning a disabled employee’s capabilities before concluding that he or she is unable to perform the

duties of their employment. The test is an objective one to be applied by reference to the range of responses to be

expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced

conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints

occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available

medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive.”

The Officer concluded: “In the instant case, I consider that the respondent has fully and properly assessed all of the medical

evidence available and that upon obtaining further medical advice that evidence is conclusive.” His decision accordingly was

expressed as follows: –

“Having considered all the written and oral evidence presented to me, I find that the medical evidence indicates that the

complainant is no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached

to the position to which she was recruited for, having regard to the conditions under which those duties are, or may be

required to be, performed. Accordingly the provisions of Section 16 (1) of the Acts applies in relation to this complainant

and therefore this complaint must fail.

Additionally, notwithstanding the foregoing, I have considered all the written and oral evidence presented to me, and I

find that the respondent has given consideration to the provision of appropriate measures to enable the complainant to

return to work but that these measures give rise to a cost other than a nominal cost. Therefore the respondent is entitled

to rely on the provisions of Section 16 (3) of the Acts and accordingly this complaint must fail.”

10. Ms. Daly appealed to the Labour Court which conducted a hearing into the matter on oral evidence and delivered its determination

dated 12th August 2014, allowing the appeal and ruling in her favour. The grounds of this decision are the essence of the appeal to

this Court and require detailed examination. Either party could appeal that determination to the High Court on a point of law and the

school challenged the interpretation of the law and the findings of fact. In his judgment delivered on 11th December 2015, Noonan J.

rejected the challenge, holding that the school had failed to demonstrate any error of law or absence of factual ground in the

determination of the Labour Court.

11. The issue for this Court is whether the High Court was correct in law in endorsing (a) the Labour Court’s interpretation of s. 16

and (b) its application of the law to the facts.

The Directive and HK Denmark

12. The legal context of the case has as its foundation Directive 2000/78/EC establishing a General Framework for equal treatment in

employment and occupation. The preamble at Recital (16) declares that the “provision of measures to accommodate the needs of

disabled people at the workplace plays an important role in combating discrimination on grounds of disability”. Recital (20) says:

“Appropriate measures should be provided i.e. effective and practical measures to adapt the workplace to the disability, for example

adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration

resources”. Article 5 mandates provisions to facilitate persons with disabilities to obtain employment and to participate as fully as

possible in it:

“Reasonable accommodation for disabled persons

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable

accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a

particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to

undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be

disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the

Member State concerned.”

13. In cases C-335/11 and 337/11, shortly identified as HK Denmark which judgment is relied on by both parties in the appeal, the

Court of Justice opens its judgment with reference to the United Nations Convention on the Rights of Persons with Disabilities of 13th

December 2006 which was ratified by the European Union on 23rd December 2010, citing paragraph (e) of the Preamble, which says

that:

“Disability is an evolving concept and the disability results from the interaction between persons with impairments and

attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with

others.”

14. The case was a request for a preliminary ruling on the issues with which we are not concerned in this appeal but in addressing a

question of a different, shortened dismissal notice period in cases of disability, the Court of Justice held that a reduction in working

hours may be regarded as an appropriate accommodation measure for an employee with a disability. In its conclusions, the Court of

Justice held:

“Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of

the accommodation measures referred to in that article. It is for the national court to assess whether, in the

circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a

disproportionate burden on the employer.”

15. Other Recitals in the preamble to the Directive cited by the court included numbers 16, 17, 20 and 21 which are as follows in the

Preamble to the Directive:

“(16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in

combating discrimination on grounds of disability.

(17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual

who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the

relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.’

(20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the

disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the

provision of training or integration resources.

(21) To determine whether the measures in question give rise to a disproportionate burden, account should be taken in

particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking

and the possibility of obtaining public funding or any other assistance.”

The Labour Court

16. The Labour Court conducted a hearing into the matter on oral evidence and delivered its determination dated 12th August 2014.

Ms. McGrath, the occupational therapy assessor who had provided a report to the school also gave evidence to the Labour Court.

One of the school’s grounds of appeal is that the Tribunal ignored her testimony in reaching its determination. The court heard the

evidence of Dr. Madden, the occupational health physician who had furnished three reports to the school. The Principal and Deputy

Principal of the school and the head of a similar school also testified.

17. The Deputy Principal described the then current pupil roll. 28 children had complex needs meaning that they had more than one

disability and 46 pupils had significant care needs and required total support. Many of the pupils presented challenging behaviour and

required one-to-one assistance. 18 pupils suffered from Epilepsy; four required peg feeding; two had specific toileting needs and four

required regular medication during the school day.

18. The Labour Court held that Ms. Daly was entitled to succeed in her appeal because the Board of management of the school failed

to discharge its statutory duty to take adequate measures to provide her with reasonable accommodation so as to allow her to

continue in employment. The Labour Court did not find that Ms. Daly was competent to carry out the duties of a Special Needs

Assistant at the school, but rather that the school had a duty to fully consider the viability of a reorganisation of work and a

redistribution of tasks among all of the Special Needs Assistants so as to relieve Ms. Daly of those duties that she was unable to do.

It might have transpired that it was not possible to make the necessary adaptations. However, in circumstances where the Labour

Court held that the school had failed to carry out such exploration, it found that the school was in breach of its statutory duty and

Ms. Daly was entitled to succeed.

19. The Determination of the Labour Court dated 12th August 2014 is a detailed 35-page analysis of the European and Irish legislation

with references to case law including HK Denmark above cited, English and Irish court judgments and some previous determinations of

the court itself. I will endeavour presently to identify the key legal and factual findings the Labour Court made in coming to its

conclusions. Before doing that it is convenient to set out the Conclusion and Summary with which the determination ends. The

Conclusion is as follows:

“There is no doubt that Ms. Daly was severely limited by her disability and the range of tasks that she could perform. She

could not carry out all of the duties attaching to the role of an SNA. But she could undertake many of those tasks. It

appears from the evidence adduced that the school’s response to that position was based on the belief that its duty was

confined to providing Ms. Daly with such accommodation as might enable her to undertake the full range of tasks

expected from a SNA. Regrettably, no amount of accommodation could produce that result. In that respect the school

construed its duty to narrowly and took a mistaken view of what the law required in the prevailing circumstances. The

school has a duty to fully consider the viability of a reorganisation of work and a redistribution of tasks among all of the

SNAs so as to relieve Ms. Daly of those duties that she was unable to perform. That, in effect, was what had been

proposed by Ms. McGrath. At the material time, Ms. Daly’s interest was being represented by her trade union. The school

might reasonably have sought an input from Ms. Daly herself and her trade union before making its decision. Furthermore,

as was proposed in the first assessment report, the school could have considered returning Ms. Daly to work with modified

duties for a trial period. However, on the evidence the court is satisfied that the school did not give any real

consideration to these possibilities. The court cannot speculate as to what the outcome might have been if the school’s

board of management had given proper and adequate consideration to these or any other options that Ms. Daly may have

advanced if given the opportunity to make submissions in defence of her position. Had the school given full and proper

consideration to these possibilities it might or it might not have concluded they were viable, reasonable and proportionate

in the circumstances prevailing.

It is also significant that the school never considered offering Ms. Daly a renewal of her secretarial role, which she could plainly

perform with little or no adjustments, or consider the feasibility of providing her with part time employment.”

The summary says:

“In this case, the school did obtain independent professional advice on Ms. Daly’s capacity. That advice did not rule out the possibility

of Ms. Daly returning to work if certain adjustments were made to the range of tasks that she would be expected to perform Ms. Daly

was not consulted on the question of how effect have been given to the recommendation made by the professional advisors. Nor did

the school’s board of management properly or adequately consider that question. It simply concluded that because Ms. Daly was

manifestly unable to undertake the full range of duties attaching to the job of an SNA she could not return to work. Had the school

given full and adequate consideration to all the possible options it might or it might not have reached a different decision. That,

however, is not a matter on which the court can speculate.”

20. Regarding the law, the Labour Court set out its interpretation of section 16. The court understood the requirement in s. 16 to

make adjustments that represent reasonable accommodation as including allocating tasks that the person is unable to do among other

staff members. The court declared: “[t]here is no reason to exclude in principle extending that duty [the duty on an employer] to

include the redesign of a position so as to include those duties that a disabled person can perform if that is a reasonable and

proportionate means by which the disabled person can be facilitated in exercising their right to work”. The 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 she could not

fully discharge the duties of the job that she held before she had the disability.

21. The Labour Court said that the law does not require an employer to employ a person in a position “the essential functions of

which they are unable to perform”. It introduced the concept of the essential functions of the position, which it found in Directive

2000/78/EC. It proposed, erroneously, that if there is a difference between s. 16 of the Act and the Directive, the latter takes

precedence. The Labour Court and this Court are bound by the law as enacted by the Oireachtas. If a person maintains that the

State has not properly or fully brought into effect a Directive, he can raise that claim in a number of procedures. But that is not the

issue here. The Act is to be interpreted in light of the Directive, but the statement made by the Labour Court is not correct. The

issue in this case is the meaning of the section of the Act as passed by the Oireachtas. However, I do not think that this point is

actually significant because s.16 expressly envisages some distribution of tasks: see subsections (4)(b).

22. The Labour Court said that the essential tasks that it spoke of might actually refer to a reorganised position. In other words, an

employer may be required on this principle, firstly, to reorganise the work, including allocating tasks that the person is unable to do

among other staff members. The person with a disability may still be unable to perform all the tasks of the newly defined position for

him or her but only the essential tasks thereof. That would leave a new residue of tasks for distribution to others.

23. The Labour Court held as a matter of law that the employer’s duty to provide reasonable accommodation carried with it “a

concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate”. This

expression has its source in English employment litigation decisions. The court referred to previous decisions that the Labour Court

had reached to the effect 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. Those cases also indicate that an enquiry in

that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the

employer ultimately makes”. On this analysis, it is the quality of the enquiry process that determines compliance with the statutory

obligation.

Factual Findings of the Labour Court

24. The Labour Court rejected the school’s contention that employing Ms. Daly as a floating SNA, as recommended by Ms. McGrath,

would mean creating an entirely different job in order to accommodate her needs. The expert had explained in evidence that “what

she meant was that the work of all the SNAs could be reorganised so as to confine Ms. Daly to performing those tasks that she was

physically able to perform safely across a number of classes while distributing those tasks that she could not undertake amongst the

other 26 SNAs”. Although doing that would “undoubtedly have involved a significant change in how the care needs of those attending

the schools could be met”, the court held that “it cannot be fairly characterised as expecting the school to create a wholly new job”.

25. The Labour Court criticised the principal for not exploring the option by consulting the other SNAs. Her evidence was that it would

involve the other SNAs in undertaking additional lifting and other physically demanding work. It would be unfair to them and could

pose a health and safety risk for them. She did not discuss the matter with them and had not had an assessment undertaken of the

possible impact on their health and safety. The court held that the school had not adequately considered this option.

26. The Labour Court found that Ms. Murphy’s involvement was decisive in influencing the conclusion of Dr. David Madden, the

occupational health physician, who carried out three assessments of Ms Daly, culminating in his third report, prepared following

consultation with the principal of the school, in which he expressed a different opinion to his earlier views. In the final assessment, Dr.

Madden referred to the report of Ms. McGrath and said:

“The report suggests that she may be suitable for the position of floating SNA. I note no such position exists. I reviewed

the risk assessment and acknowledge that there are many tasks that Ms. Daly is not fit to participate in. I understand

from discussing with her school, the level of accommodation required is not possible to meet to ensuring the safety of all

those involved. I acknowledge the number of roles that Ms. Daly would need accommodation would be significant.

Conclusion:

Ms. Daly is in satisfactory health and fit for some work. I acknowledge she has a medical issue that renders her unsuitable

to perform many of the roles critical of a special needs assistant. I note that the level of accommodation is significant and

her employer is not in a position to facilitate such a level of accommodation in the workplace.

I feel Ms. Daly is not medically fit for the position of special needs assistant. I feel Ms. Daly’s medical condition is genuine

and permanent. I feel she is likely to remain unfit for the position of SNA permanently.”

27. In his previous reports, the first of which was in March 2011, Dr. Madden considered that Ms. Daly was fit to return to many of

the duties of a SNA, but there were some she could not undertake. He was “happy to support her return to work once a risk

assessment has been completed”. On 15th August, 2011, he held the same opinion but he was not satisfied with the risk assessment

report that the school had obtained and he advised the school to procure another report. The report recommended that Ms. Daly’s

return to work be accommodated by implementing a number of measures including rearranging her work practices so her role would be

less challenging. The report further advised that Ms. Daly be consulted on all matters relative to her reintegration in the workplace.

Ms. Ina McGrath was identified as a suitable expert occupational therapist to carry out the fresh risk assessment.

28. Ms. Murphy was of the opinion that Ms. Daly could only return to work if she was able to perform all of the duties of an SNA and

told that to Dr. Madden. She said it would be difficult for the school to relieve her from some duties. Dr. Madden’s recollection was

that Ms. Murphy told him that there were a significant number of issues around the proposals contained in the risk assessment and

that the school could not provide the level of accommodation needed to facilitate Ms. Daly’s return. Dr. Madden understood from this

conversation that Ms. Daly could only return to work if she could perform the work of an SNA in its entirety.

29. The Labour Court said that the school Board was influenced in its decision by Dr. Madden’s conclusion that Ms. Daly was medically

unfit to work as an SNA. However, there was no evidence that the board was made aware that Dr. Madden formed that opinion on

the understanding that the school would not or could not make the necessary adjustments in work organisation so as to

accommodate Ms. Daly. Nor was the Board of management made aware that if those arrangements were made she would be fit to

return to work.

30. The Labour Court noted that the Board of management of the school reached its decision without seeking any input from Ms.

Daly:

“The decision not to pursue the possibility of reorganising duties among the SNAs was based on the import of a

conversation reported to it between Ms. Murphy and a named official of NCSE concerning the feasibility of such an

approach. This named official of NCSE did not give evidence and the court was not made aware of the details of the

opinion expressed by this official or the basis upon which it was formed. Furthermore, the court finds the minute of record

of the report made to the board somewhat puzzling. It reports that Ms. M. was informed that NCSE appoints staff for

children with disabilities and not for adults. There was never any suggestion that Ms. Daly should work with adults.”

The High Court

31. Noonan J. upheld the Labour Court’s rejection of the school’s interpretation of s. 16 and implicitly endorsed the test applied to

decide the issue. He also dismissed the school’s protest in regard to the oral testimony that the Labour Court had not had regard to

the evidence given by Ms. McGrath, a case which it supported by evidence from her on affidavit, by the school’s solicitor’s note of

the evidence and of the court’s secretary’s note, which the solicitor exhibited in another affidavit. The judge was satisfied that there

was more than ample evidence available to support the Labour Court’s findings. The notes of the evidence from the school’s solicitors

and the secretary of the Tribunal and Ms. McGrath’s affidavit did not go anywhere near establishing that the Labour Court ignored or

misinterpreted Ms. McGrath’s evidence or reached a conclusion that was perverse. Indeed, the trial judge was prepared to endorse

the criticisms made by the court of the engagements by the principal of the school with the experts. It is clear that the judge would

have accorded significant deference to the Labour Court’s findings of fact which he felt were within its area of expertise.

32. The High Court’s findings included the following:

“The school’s position at the Labour Court was that reasonable accommodation and appropriate measures in subs. (3) and

(4) applied only to such measures as would render Ms. Daly capable of fulfilling all the duties of the job. The definition of

“appropriate measures” in subs. (4) includes the adaptation of both patterns of working time and distribution of tasks. As

held by the CJEU in Ring, the adaptation of patterns of working time must include the elimination of some of that working

time, subject always to the caveat that the measures must not impose a disproportionate burden on the employer. The

adaptation of the distribution of tasks must also where appropriate include the elimination of tasks since otherwise the

section would fail to achieve the objective for which the legislation was enacted.

Whether, and to what extent, a reduction in tasks is required to comply with s. 16 must necessarily depend on the facts

of each case. It may or may not be relevant to consider whether a point is reached when the appropriate measures

transform the job into something entirely different from that which originally existed. Some of the English authorities

appear to go as far as suggesting that under the equivalent, and admittedly different, English legislation which pre-dates

the Directive, the requirement to reasonably accommodate a disabled employee may extend to transferring him or her to

an entirely different position within the same organisation – see Archibald v. Fife Council [2004] UKHL 32 and Chief

Constable of South Yorkshire Police v. Jelic [2010] IRLR 774.

While the school in its submissions criticises what it submits are various errors of law in the Labour Court’s interpretation

of the national and European case law, even if same were made, which I do not determine, these do not appear to me to

undermine the ultimate outcome. The fundamental determination of the Labour Court here was that the school failed to

engage with its duty to consider whether or not Ms. Daly could reasonably be accommodated by the implementation of

appropriate measures. The Labour Court did not conclude that Ms. Daly could be so accommodated but rather it was the

failure to even consider a redistribution of her tasks as a SNA that rendered the school in breach of s. 16. It seems to me

that on the evidence, the Labour Court was perfectly entitled to reach the conclusion that there had been no adequate

consideration or evaluation of these issues by the school and a phone call to the NCSE 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.

These are all conclusions which in my view were open to the Labour Court on the evidence and it could not in any

realistic sense be suggested that these were irrational or based on an erroneous interpretation of the law.”

The Appeal to the Court of Appeal

33. The school appeals to this court on grounds of appeal that it formulated into four compressed and summarised issues as follows,

claiming that the learned High Court judge erred:

(i) In his determination and application of the standard of appeal on incorrect findings of fact in appeals on a point of law

and failed to overturn the findings of the Labour Court in relation to the evidence of Ms. Ina McGrath on the basis of the

error in the determination and application of the said principles;

(ii) in his interpretation of s. 16 of the Employment Equality Act 1998, in his analysis and application of the EU case law

and Directives in relation to the interpretation of this section and in upholding the analysis of the Labour Court in relation

to this section;

(iii) in his finding and in upholding the finding of the Labour Court that the appellant failed to consider reorganising the role

of SMAs and

(iv) in his interpretation of the Irish case law in relation to reasonable accommodation and in relation to his analysis of the

attempts of the appellant to afford same to the respondent and he erred in his upholding of the Labour Court

determination in relation to these issues, particularly in relation to the interpretation of the Humphreys v. Westwood

case.

34. Ms. Daly’s essential case is summarised in her submissions as follows:

“In summary, the School never considered in any meaningful or serious way making any adjustments to the actual nature

of the role being performed by Ms. Daly. They were unwilling to and/or believed that they were not legally required to

engage in the necessary process.

This would have involved meaningful industrial relations and human resources discussions with the other SNA’s and their

trade union representatives and the school’s funders to explore making adjustments to the duties performed by Ms Daly.

This should have been done to properly investigate whether her return to work could be accommodated by for example

assigning to her more of the types of tasks which she could perform and potentially re-allocating to other SNAs some of

the tasks she could not perform.

In truth, the School took a misinformed view of its legal obligations and believed wrongly, that if Ms Daly was unable to

perform (with physical or mechanical assistance) all of the duties which traditionally attached to the role of SNA in that

school, then they were under no obligation to consider accommodating her.

The Labour Court’s finding was correctly upheld by the High Court and the succinct ratio of the learner to Trial Judge at

paragraph 61 of the Judgment is, it is respectfully submitted, correct: –

Noonan J. decided that the fundamental determination of the Labour Court was that the school failed to engage with its

duty to consider whether or not Ms Daly could reasonably be accommodated by the implementation of appropriate

measures. The Labour Court did not decide that she could be accommodated but that the school failed to consider

redistributing her tasks as an SNA, which constituted a breach of section 16. The High Court held that the Labour Court

was entitled to reach that conclusion.”

Discussion

Factual Context

35. Did the Labour Court apply the law correctly? Was the court’s view of the interpretation of the section correct? Did the court

correctly apply the law to the known or ascertained facts? Was the High Court correct to endorse the Labour Court’s approach and

decision?

36. The best place to begin consideration of the appeal is with the facts. As Noonan J. held: “Whether, and to what extent, a

reduction in tasks is required to comply with s. 16 must necessarily depend on the facts of each case. It may or may not be relevant

to consider whether a point is reached when the appropriate measures transform the job into something entirely different from that

which originally existed”.

37. We have to look at Ms. McGrath’s report in ascertaining the factual background to the Labour Court’s decision. The Labour Court

relied in its determination on the views of Ms. McGrath, an ergonomics/occupational consultant, whose report is dated 29th

September 2011. Ms. McGrath’s conclusion that Ms. Daly could act as a floating SNA in the school forms a prominent part of the

Labour Court’s consideration. It is important to understand the report as a whole to see this recommendation in context. The school

also raises an issue about the evidence given by Ms. McGrath at the Labour Court hearing and the alleged failure of the Labour Court

to record it or take note of it, but that is a separate consideration.

38. Ms. McGrath’s qualifications are a BSc. in Occupational Therapy from Trinity College Dublin. She worked in rheumatology,

neurology and rehabilitation in Ireland and America. She returned to university to complete a Masters in Science in Ergonomics from

Loughborough University in 1999. She works in private consultancy as an ergonomist and also works for the HSE as an occupational

therapist.

39. The report beings with information about the school. It is a Special Needs school with approximately 70 students with moderate,

severe and profound disability. The staff included 12 teachers and 26 Special Needs Assistants as well as a caretaker, secretary, bus

staff and ancillary therapy staff. The school also relied on help from volunteers. There are ten classes in total: a reception class for

the younger children; a junior class; two middle classes; two senior classes; classes for children with Autism Spectrum Disorder and

for children with severe/profound disability.

40. The report has an Appendix with details of the role of a Special Needs Assistant which includes duties of preparing and tidying up

classrooms; helping children to get on and off school buses; travelling with them as required; giving special assistance as necessary

for pupils with particular difficulties, such as helping physically disabled pupils with typing or writing; helping with clothing, feeding,

toileting and general hygiene; helping on out-of-school visits, walks and similar activities; helping teachers supervising pupils with

special needs during assembly and other times; accompanying children or groups who may have to be withdrawn temporarily from the

classroom; general assistance to the class teachers and where specifically assigned to an individual pupil, catering for his or her

needs. SNAs do not act as substitute or temporary teachers.

41. Ms. Daly is wheelchair-dependent for mobility and she can transfer independently from the wheelchair. She is able to get around

the school. She has passed her Driving Test as a wheelchair user. She has good upper extremity range of motion and strength and

she demonstrated, on the occasion of Ms. McGrath’s visit, that she could pick up items from the floor when she leaned to the side.

She is independent in all her own care needs, but needs assistance with getting items from higher shelves and for using sinks because

they are at standing height.

42. On the second day of Ms. McGrath’s visit, 9th September 2011, she observed Ms. Daly in two classes that were deemed as

potentially most suitable for her. On the date of her first visit, 2nd September 2011, Ms. McGrath assessed the other classes

beginning with the one in which Ms. Daly had taught prior to her accident which was the junior special class. Ms. McGrath concluded

that Ms. Daly would not be suitable for work as an SNA in this class. The children are physically dependent and need to be physically

assisted for mobility, transfers, feeding, medication and safety. Bending, pushing, pulling, physical manipulation of children’s limbs is

required throughout the day. The SNAs switch between the children so there is equal distribution of workload. Ms. McGrath and the

junior special class teacher, Ms. Gabrielle Browne, discussed the suitability of the other nine classes. In seven of those classes, the

children needed physical assistance or had to leave the classroom and be accompanied or were inclined to act out and needed

physical attention to help control outbursts or needed assistance in going to the toilet or using facilities or leaving the school for one

reason or another. It was clear to Ms. McGrath that Ms. Daly would not be suitable for work as an SNA in any of those classes. That

left two classes that were possible locations where Ms. Daly might be accommodated as an SNA and so, on the second day, 9th

September 2011, Ms. McGrath accompanied Ms. Daly in those classes and spent half a day in each.

43. In one class, three of the children had Autistic Spectrum Disorder. Two children needed close supervision. One child required

assistance with changing a nappy for toileting. Another needed close supervision because of acting out. A child had Dyspraxia

resulting in clumsiness leading to accidents and falls. A new child who had joined the class recently was observed hitting out during

assembly and had to be stopped by the SNA in the class and removed to the Sensory Integration Room. That happened again and the

child required hands-on intervention and was removed from the classroom by two SNAs. Ms. Daly was able to bring a child with

Dyspraxia to the Sensory Integration Room to work on therapy exercises which she did by giving verbal direction to the child, but she

was limited to minimal physical assistance. The other SNA who was present in the Sensory Integration Room said she did not feel safe

at the time because she felt that there was a need for two physically able SNAs because the children had the capacity to act out.

44. The other class was the middle class which had eight children and two fulltime SNAs and a further SNA that the class shared with

the reception class. In effect, there were 2.5 SNAs available in this class. Three children needed assistance with mobility. One child

had Epilepsy and needed physical assistance when walking, which meant that two SNAs escorted the child to the bus. One with

Autistic Spectrum Disorder needed to be escorted to a quiet room. Another child had stiff and shuffling gait and needed assistance.

Children needed assistance with toileting. Ms. Daly was able to give good assistance with a child who was able to lift her feet up so

Ms. Daly could take her clothes off and put them on over her feet, but another child was less compliant because of not being as

physically flexible. Ms. Daly could not assist the SNA with taking one of the children to a quiet area while the others were being

disruptive. The result was that there was no class in which Ms. Daly could participate in any physical sense with the principal duties

of an SNA.

45. Ms. McGrath then provided a Job Demands Analysis in tabular form in which she listed particular SNA duties and in each case,

having listed the duty in turn, she tabulated the task demands and whether there was a fit with Ms. Daly, and finally, whether

adaptations or equipment were required to facilitate Ms. Daly in dealing with the particular duties. This is the source of the claim on

Ms. Daly’s behalf, that of the 16 tasks that are associated with the job of an SNA, she is unable to do seven of them, but is able to

perform some nine functions wholly or partly. In regard, for example, to a duty entitled ‘Supervision in Assembly’, the demands of

which are described as “walk with students to assembly, sit with student group in assembly, say prayers with group”, Ms. McGrath

commented that Ms. Daly was able to do this by giving verbal direction or physical prompt to children who are independently mobile

and not at risk of absconding and that she could sit and encourage input from children. Obviously, she was not able to assist with

dancing. Neither could she help to prevent hitting out and acting out behaviour.

46. Ms. McGrath turned to a question of safety. She said that Ms. Daly is in a more vulnerable position in a wheelchair than other

staff in instances where a child is acting out by throwing items etc. She cannot move as quickly to get herself out of the way, if

required, or to intervene to protect a child or a staff member. There is a requirement for two physically-able SNAs with children who

act out or need physical assistance. She said that there may be a concern that Ms. Daly would not be able to support the other SNA

in the instance of a physical outburst that put that SNA at risk. There may also be a concern regarding division of labour i.e. would an

SNA working in tandem with Ms. Daly get all the heavy jobs and therefore be at greater risk of injury?

47. Ms. McGrath’s conclusions referred back to her table of duties and said that:

“It is clear that she is limited from assisting with children with physical care needs. Safety, however, is the main concern

for Ms. Daly, staff and the children. Both classes assessed had children who can act out and need hands-on intervention

and/or escorting. This suggests that these classes would need two physically-able SNAs to assist with these children.”

Accessibility was not a limitation for Ms. Daly while some relatively minor adjustments might be required. She then added the following

paragraph which is central to the determination of the Labour Court:

“The recommendation is that Ms. Daly could act as a floating SNA. The Risk Assessment/Care Need Sheets (Appendix 2)

used to assess children could be used to identify children that Ms. Daly could work with. She can perform SNA duties with

children who need verbal or physical prompts. It is not recommended that Ms. Daly work with children who act out

physically.

I hope that Nano Nagle School have resources to support Ms. Daly as it is evident that she is very motivated to return to

work.

If I can be of any other assistance, please do not hesitate to contact me.”

48. I have set out this report in some detail because it is important to understand the process that Ms. McGrath engaged in; the

nature of the school; the needs of the pupils and the requirements of the job of an SNA. Ms. McGrath made later comments in her

evidence about the suggestion of a floating SNA, but taking the report as it stands it is clear what Ms. McGrath means. Ms. Daly is

unable to perform the normal tasks of an SNA. She would not be suitable to work in any of the ten classes that there are in the

school. She could not deal with children who have any physical needs, which is a large proportion of the children. Some of them have

clear physical needs and disabilities that require hands-on assistance on a regular and predictable basis. Many of the others are

subject to episodic acting out that is not predictable, but which calls for rapid intervention by a fully able-bodied SNA or possibly two

such persons. A person with a severe disability, such as Ms. Daly, could be a danger to herself as well as to others, whether children

or colleagues. The parts of the job that she can do are those parts that do not require physical involvement, such as giving verbal

instructions or encouragement, but that is only one part of the job of an SNA.

49. It is clear that Ms. Daly is a committed worker and her record before the accident was exemplary. However, enthusiasm is not

enough in a situation where there are vulnerable children who are in need of special care that involves hands-on attention at a quite

intense level at times.

50. It is clear without considering the evidence that Ms. McGrath and the other witnesses gave at the Labour Court hearing, that Ms.

McGrath’s report indicates that the redistribution of tasks to accommodate Ms. Daly as an SNA in the school would take out all of the

elements of the job consisting of physical involvement with children. That would include dealing with children who might require

physical restraint or accompaniment, as well as those whose behaviour could be anticipated. The suggestion made by Ms. McGrath

was that Ms. Daly might act as a kind of supernumerary SNA, operating in any part of the school where she might be able to do

something useful. It is apparent that Ms. McGrath hoped that the school would have the resources to accommodate Ms. Daly in this

manner.

51. This report furnishes the factual background against which we have to assess the practicality or otherwise of the factual

assessment made by the Labour Court. The legal issue is the interpretation of the section.

Legal Context: Interpretation of Section 16

52. As appears above, the Directive mandates that employers make reasonable accommodation for disabled persons:

“This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a

disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would

impose a disproportionate burden on the employer.”

In its conclusions in HK Denmark, cases C-335/11 and 337/11, the Court of Justice held:

“Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of

the accommodation measures referred to in that article. It is for the national court to assess whether, in the

circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a

disproportionate burden on the employer.”

53. Subsection (3) (b) of section 16 requires an employer to

“Take appropriate measures, where needed in a particular case, to enable a person who has a disability

i. To have access to employment,

ii. To participate and advance in employment,

iii. To undergo training, unless the measures would impose a disproportionate

burden on the employer.”

Subsection (4) defines ‘appropriate measures’, in relation to a person with a disability as including, inter alia, distribution

of tasks.

54. It follows from these citations that section 16 does not require any special construction because interpretation of its meaning is

available in the ordinary meaning of its words. The section does envisage some distribution of tasks, just as it also specifies time

adjustments, as HK Denmark found was the case with the Directive. It is correct to infer that the requirement to be able to perform

all the tasks of the position means the tasks after adjustment or distribution. Adjustment to access and workplace and hours and

tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are

not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks,

especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to

demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full

competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in

section 16 (1) must be respected. The section does not in its terms make the process of enquiry a ground of default, neither does a

failure to consult constitute breach of the duty imposed.

55. In this case, the employer was obliged to give objective consideration to Ms. Daly’s capacity to perform the tasks of a Special

Needs Assistant in this school. On that question, the facts as reported by Ms. McGrath were not in dispute.

The Labour Court’s Conclusion

56. Was the Labour Court entitled to hold that the school did not comply with its statutory duty under s. 16? Did the school comply

fully or substantially or not at all?

57. The school obtained expert reports. On the advice of the occupational health physician, it engaged Ms. McGrath who had worked

with Ms. Daly on her recovery. The Principal followed up the floating SNA idea, as suggested by Ms. McGrath, by contacting the

school’s funding body, the NCSE, but that proposal was not approved. The official who dealt with the request was named in the

Labour Court so the school was specific as to the refusal of funding. The point that he made to the Principal was that SNAs were

provided for care of children, not to support adults i.e. adult workers, so the Council would not fund a position of floating SNA who

would not be doing the work required of such a worker. The Labour Court and the High Court appear to have had some difficulty in

deciphering the shorthand message conveyed by the NCSE official, but it was clear to the Equality Officer and the school.

58. The Labour Court was in error in dismissing the school’s argument that the floating SNA position required the creation of an

entirely new position. That is just what it involved. Such a job would be a new position in the school; there was not a floating SNA

working in different classes from time to time. It would be entirely different from the work of the other SNAs. Classes in which two

assistants were needed would continue to need them and Ms. Daly would not be able to replace one person, as the report made

clear. Ms. McGrath expressed the hope when making the recommendation that the finances of the school would permit its

implementation. In the result it is hard to reconcile this finding of the Labour Court with the known facts. Ms. McGrath’s report

confirms the school’s argument that this was a new job being created, for which the writer hoped the school would have funds,

namely a supernumerary SNA position with all the physical elements removed.

59. The criticism of the Principal for not approaching the other SNAs to take on between them the physical aspects of the job is not

justified. The school had a decision to make about Ms. Daly’s capacity to work as an SNA. The Principal was not required to canvas

with the other SNAs whether they would be willing to take on the work that Ms. Daly could not do. Even if they were willing, the

school Principal and the Board would still had the decision to make. It was not sufficient to have a majority vote of the SNAs.

60. The fact that the occupational health physician discussed with the Principal the situation in the school in regard to Ms. Daly’s

proposed return to work is not a matter for criticism of that expert or of the Principal. The impact on the school and the facilities

available to accommodate Ms. Daly were proper points for consideration as the expert saw fit. It was his report to the school and he

was entitled to obtain relevant information. The fact that Ms. Murphy was of the view that Ms. Daly would have to be able for all the

SNA tasks is in the circumstances of this case of no significance because of the extent of the reorganisation that would have been

necessary. If the case had been that some non-essential tasks which could be distributed among other employees were stopping Ms.

Daly from getting back to work, the mistaken belief as to the need for full capability might be relevant but the situation here was

entirely different.

61. The school Board made its decision based on the reports and in light of the refusal of funding for the new position. The school

management had to decide in the interests of the whole school community, but primarily the children whose care was entrusted to

the school. They needed physical, hands-on SNA care work. Parents were entitled to insist on a full complement of capable care

staff. Safety is a major concern: of children from children who act out; of the children who act out; of the SNAs; of other staff; and

of Ms. Daly herself. The school was not in a position to take chances with care and safety obligations towards the whole school

community; it was entitled to say that it needed all of its complement of SNAs to be fully capable. All of this was in the McGrath

report expressly or impliedly and was not in dispute. The failure of the Labour Court to address these matters not only undermines the

validity of its analysis but also serves to highlight the error of its approach in focussing on the position of Ms. Daly to the exclusion of

the other legitimate interests that the school had to accommodate.

62. The High Court discounted the school’s complaints about the Labour Court’s analysis of the law, holding that the ultimate

conclusion in the determination concerned the process of evaluation and that any such errors as might have been found, which the

court did not find it necessary to decide, did not impact on the decision made in the end. For the reasons I have stated above, I do

not agree with that conclusion, but I want to say why I also do not consider that the ultimate decision is valid as a matter of law.

The proposition that there is a freestanding obligation on an employer to carry out an evaluation, irrespective of the other

circumstances of the case and without regard to the fundamental question as to whether the employee is actually capable of doing

the job, is starkly stated as a matter of law by the Labour Court. This is ultimately the basis for its conclusion that Ms. Daly was

entitled to compensation on the basis that the employer failed in its duty under the Act to make reasonable accommodation for the

employee. The Labour Court said:

“If all of the options that may be available are not adequately considered, the employer cannot form a bona fide belief

that they are impossible, unreasonable or disproportionate. As was pointed out by this Court in Humphreys v. Westwood

Fitness Club and in A Worker v. An Employer, 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. Those

cases also indicate that an inquiry in that regard can only be regarded as adequate if the affected employee is afforded

an opportunity to influence the decision that the employer ultimately makes.”

63. There is nothing in s. 16 to justify this rule. The argument has its origin in English employment law decisions on their disability

legislation, culminating in the case cited by the Labour Court in Mid-Staffordshire General Hospital NHS Trust v. Cambridge [2003] IRLR

566. That case, however, has been disapproved and not followed in cases decided from as early as 2006 until recent judgments. See

Tarbuck v. Sainsbury Supermarkets Ltd [2006] IRLR 664. The point is a simple one: 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 or for not consulting. It is not a matter of review of

process but of practical compliance. If reasonable adjustments cannot be made, as objectively evaluated the fact that the process of

decision is flawed does not avail the employee.

64. I find myself in agreement with the Equality Officer’s conclusion in this matter. He applied the terms of the Act to the facts of the

case. The facts are incontrovertible and the Labour Court paid insufficient attention to them. The central reality is that Ms Daly is

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. Instead, the Labour Court thought that the employer’s obligation was to strip away

the things she could not do and then to ask whether she was able to perform the essential tasks that remained. It discounted the

consideration the school gave to the new position arising from Ms. McGrath’s report, which in my judgment was erroneous.

65. In view of these conclusions, it is not necessary to consider the ground of appeal based on the evidence given by Ms. McGrath to

the Labour Court. My judgment is that the court did not correctly apply the law to the undisputed facts contained in that expert’s

report. In other circumstances, I would be concerned if a Tribunal were to make no reference to relevant evidence on a central issue

or to appear to reach conclusions that were not grounded in evidence.

66. For the reasons I have given, I would allow the appeal and set aside the determination of the Labour Court.