INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
(REPRESENTED BY STEPHEN O'HALLORAN B.L., INSTRUCTED BY THOMAS O'HALLORAN SOLICITOR)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. An appeal under section 83 of the Employment Equality Acts, 1998 to 2011.
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 6th January 2014. A Labour Court hearing took place on the 2nd July 2014. The following is the Court's Determination:
This is an appeal by the Worker (hereafter referred to as the Complainant) against the decision of the Equality Tribunal in her claim that the School (hereafter referred to as the Respondent) failed to provide her with reasonable accommodation for her disability so as allow her to continue in employment. The claim was taken under the Employment Equality Acts 1998 -2011 (hereafter the Act)
The Respondent is a special school for children with moderate, severe and profound disabilities. It has 77 children enrolled ranging in age from 4 to 19. There are 12 classes each of which contains between 6 and 8 children, depending on the degree of disability from which they suffer.
The Complainant was employed by the Respondent as a special needs assistant (SNA). She also undertook some part-time secretarial duties. The Complainant commenced her employment with the Respondent in or about December 1998. There are 27 SNAs, including a person who is currently substituting for the Complainant.
In 2010 the Complainant suffered an accident in which she sustained serious spinal injuries. She is now paralysed from the waist down and uses a wheelchair. In or about January 2011 the Complainant sought to return to work. She was assessed by an occupational health physician nominated by the Respondent. The Respondent also commissioned a risk assessment / job demands analysis in relation to the Complainant’s capacity to resume her role as an SNA. Ultimately, the Respondent decided that the Complainant lacked the capacity to fully undertake the duties of her role and declined to allow her to return to work.
Position of the Parties
The Complainant accepts that her disability prevents her from undertaking all of the tasks normally associated with the role of a SNA. She contends that she can undertake many aspects of the job and that in these circumstances the Respondent had a duty to consider a reorganisation of duties amongst the SNAs so as to allow her to perform those tasks that she can perform while assigning those tasks that she cannot perform to her able bodied colleagues.
The Respondent contends that, having taken professional and medical advice, it became clear that the Complainant lacked the capacity to perform all of the duties of an SNA and that there were no facilities that it could have made available to the Complainant which would have rendered her fully capable of performing the role for which she had been employed.
The Court heard oral evidence from the Complainant, the Complainant’s husband, Ms M, who is the principal of the Respondent school and Ms McG who undertook an assessment of the risks associated with the Complainant’s return to work. Evidence was also tendered by Dr M, who is a consultant in occupational health, Ms B who is the deputy principal of the Respondent school and from Mr T who is the principal of another special school located in the same region as the Respondent school.
The Complainant told the Court in evidence that she commenced working with the Respondent in or about December 1998 as a SNA. She is a trained nurse but has no formal qualification in the duties of an SNA.
The Complainant described the duties of her role. She told the Court that it primarily involved the provision of personal care and assistance to the pupils who attend the school, all of whom have disabilities. The work involved accompanying the children to assembly and then escorting them to the class room in which she worked. She read stories which were a tool in the education of the children and she undertook table top work. The Complainant also undertook some nursing duties, such as attending to children who might fall and in attending to those who required peg-feeding.
The Complainant also performed some secretarial duties on a part-time basis.
The Court was told that when the Complainant last worked there were approximately 70 pupils attending the school. They were divided amongst 10 classes. One teacher was attached to each class. At that time there were 26 SNAs attached to the school. There were two classes for children with severe disabilities. 12 pupils were classified as having profound disabilities. Normally two SNAs were attached to each class. There were three SNAs attached to the class in which the Complainant worked, due to the degree of disability amongst its pupils.
In dealing with the circumstances in which she came to perform secretarial duties, the Complainant told the Court that in or about 2004 the then school secretary became ill and she was asked to take on some of her duties. She performed this role for 10 hours per week in addition to her role as an SNA. She was paid €92 per week, net, in respect of these duties. She did not have a separate contract covering this work nor did she receive pay slips. These secretarial duties were normally performed between 3 pm and 6 pm each afternoon.
The permanent school secretary subsequently died. In or about 2008 a full-time secretary was appointed but the Claimant continued to perform the same part-time secretarial duties as previously. She continued to perform this part-time role up to the time that she ceased working following her accident. According to the Claimant, the Respondent did not discuss with her the possibility of continuing to undertake these part-time secretarial duties in the context of her request to return to work.
Turning to the circumstances of her accident, the Complainant told the Court that she suffered spinal injuries in July 2010 as a result of a fall while on holidays. After receiving treatment in hospital she became a patient in the National Rehabilitation Hospital (NRH) where she remained for five months. During her time in hospital the school principal remained in contact with her and assured her on a number of occasions that her job was safe.
Before her discharge from NRH a vocational assessment of her capacity to work was undertaken. This assessment was undertaken on 20thOctober 2010 and on 10thNovember 2010. In her report dated 10thNovember 2010, the occupational therapist who undertook the assessment concluded that the Complainant could return to work on a phased basis. A copy of the report was put in evidence.
The Complainant was discharged from the NRH on or about 19thDecember 2010. In the following January she sought to return to work. She was advised by the Respondent that she would have to undergo an assessment through an occupational health care practice nominated by the Respondent.
The Complainant attended Dr M who is a consultant in occupational health attached to the practice nominated by the Respondent. At her first appointment with Dr M, on 23rdFebruary 2011, the Complainant discussed her condition with Dr M and gave him a copy of the assessment prepared by NRH. The Complainant’s recollection of this consultation was that Dr M agreed that she could return to work on 8thMarch 2011 subject to a risk assessment being undertaken.
The Complainant told the Court that a risk assessment was undertaken by a named provider in mid-March 2011. She was assessed in her own class-room over one day. The report of this assessment was put in evidence.
Following this assessment the Respondent referred her back to Dr M. It was the Complainant’s evidence that Dr M expressed surprise that she had been referred back and indicated to her that the Respondent was not happy with the assessment that had been undertaken. It was her recollection that Dr M had not changed his opinion that she could return to work if certain accommodation was provided by the Respondent. Dr M did, however, recommend a further assessment.
The Complainant recalled the second assessment which was undertaken in the school on or about 9thSeptember 2011. She was assessed while working in the junior class and in one other class. This assessment was undertaken by Ms McG. Present during the assessment were the Complainant herself, Ms McG, a teacher and one other SNA. The Complainant did not have any input into the selection of the classes in which she was to be assessed. The Complainant’s recollection was that the assessment went well and while there were tasks that she could not perform there were many that she could undertake. The Complainant was not provided with a draft of the report that was subsequently produced nor was she given any opportunity to comment on the report before it was presented to the Respondent.
Following the completion of the assessment report the Complainant sought clarification from the Respondent of her position in relation to a return to work. By letter dated 28thOctober 2011 the Respondent wrote to the Complainant enclosing a copy of the assessment report. The letter was in the following terms: -
- “At the most recent meeting of the Board of Management of 26thOctober 2011 – the issue of your return to work was again discussed.
Having reviewed the enclosed Risk Assessment that was recommended by [occupational health practice] and carried out by [Ms McG], much discussion was expressed by the Board re duties of an SNA in the special circumstances within [the school]
The challenging issues raised by the Report again highlight the following:
1.)Health and Safety for pupils
2.)Health and Safety for you [name of Complainant]
3.)Health and Safety for all other members of staff
These are of great concern to the Board with respect to all concerned.
In light of these challenging issues, the Board is again requesting [occupational health practice] to review your situation having due regard to this Report.
Your circumstances are very painful for the Board because of the respect the Board has always held for you and we are really sorry that the situation isn’t as yet sorted. But we have to take an independent overall view of the Health and Safety situation within the school which we are sure you will appreciate.
Hoping that the above issues will soon be sorted to the satisfaction of everyone”
Following this consultation the Respondent wrote to the Complainant by letter dated 27thDecember 2011 in the following terms: -
- “At our most recent meeting of the Board of Management of 15thDecember 2011 – the issue of your return to work was discussed yet again.
Having reviewed the Risk Assessment that was recommended by [occupational health practice] and carried out by [Ms McG] and the subsequent [occupational health practice] Report, much discussion took place re the duties of an SNA in the special circumstances of [the school].
As already expressed in our letter of the 28thOctober,
1)Health and Safety for pupils.
2)Health and Safety for you [name of Complainant.
3)Health and Safety for all other members of staff
were again raised by the Board and are of great concern with respect to all concerned.
In view of the nature of the position of SNA in [name of school] and taking into consideration the conclusion of [Dr M] of [occupational health practice] as stated in the final paragraph of his Occupational Health Assessment (enclosed), it is with deep regret that we wish to inform you that you are medically unfit for the position of Special Needs Assistant in [name of school].
This decision is most painful for the Board because of the respect the Board has always held for you, and the great contribution you have made to the school over the years.
The Board wishes to thank you, wish you well and to say that you are always welcome in [name of school] at any time”
The Complainant recalled in evidence that since her accident she had briefly returned to work for the Respondent carrying out secretarial duties. She said that in February 2011 she had returned to work for three days to assist in administrative work associated with an impending school inspection. In March 2011she was contacted by a senior class teacher and asked if she could accompany pupils on a school trip to Florida and act as a nurse for four or five children. She told the Court that similar trips are organised annually and she had always accompanied the group participating. On this occasion she declined because she had been away from home for so long during her hospitalisation.
The Complainant understands that a substitute SNA was employed by the Respondent during her absence. She was informed that this person had become upset on hearing that she (the Complainant) was returning to work.
The Complainant never received her P45 from the Respondent. She was informed that the Department of Education regarded her as still employed. It was the Complainant’s evidence that the Board of Management of the Respondent never met with her to discuss her future employment nor was she invited to make submissions in relation to the various reports dealing with her capacity.
The Complainant said that she had consulted a solicitor in relation to her situation, who proposed to the Respondent that a further assessment be undertaken by a person nominated by her. She said that this offer was not taken up by the Respondent.
The Complainant told the Court that she believes that she could work as a SNA if she was accommodated by being relieved of certain tasks that she physically cannot undertake.
In cross-examination the Complainant did not accept that Dr M had concluded that she was unfit to return to work. She said that Dr M had been told by the Respondent to say that. It was the Complainant’s evidence that at one consultation Dr M had told her that she could return to work immediately if she wanted to. She also said that Dr M had told her that it was the Board of Management who were dissatisfied with the first assessment rather than Dr M.
The Complainant agreed with Counsel for the Respondent that her injuries resulted in a condition referred to as ‘thermo regulation’. This condition results in a particular sensitivity to the cold. The Complainant agreed that she told Ms McG that this condition could limit her ability to work in the school yard during cold weather. However the Complainant told the Court that she had not worked in the school yard during the previous 12 years.
The Complainant also agreed that she had always described her role as that of a SNA and that had never sought to return to work in a secretarial role.
Evidence of the Complainant’s Husband
The Complainant’s husband told the Court in evidence that he had accompanied his wife at the final consultation with Dr M. He confirmed that Dr M had informed them that he was obliged to certify the Complainant as unfit for work because he had been told by the Respondent that it was not prepared to provide the necessary accommodation so as to allow her to resume working.
Evidence of the School Principal
The Principal of the Respondent, Ms M, told the Court that she had held that position for 13 years. The Respondent is one of two special schools in the county catering for children and young adults with disabilities ranging from what are classified as moderate to profound. There are 77 pupils ranging in age from 4 to 19. The profile of its pupils has changed significantly over the years and those now attending the school suffer from more profound disabilities and present more challenging behaviour than in the past. According to Ms M some pupils are classified as moderately disabled but this is an inappropriate classification relative to their actual degree of disability.
The Court was told that there are currently 27 SNAs assigned to the school. It is Ms M’s opinion that the school requires another 10 SNAs. Two SNAs are assigned to each room. The number of pupils in each room ranges from six to eight depending on their degree of disability. The room in which the Complainant worked had three SNAs because of the level of disability suffered by the pupils in that room.
Ms M described the duties typically performed by an SNA. She said that the children arrive by bus. One SNA travels on the bus. When they arrive the SNAs assist the pupils in alighting from the bus and they are brought to assembly. After assembly the teachers and the SNAs accompany the children to class. The work undertaken during the day is predetermined and the activity engaged in is decided by the teachers. Both teachers and SNAs are trained to work to the predetermined programme. There is a special room, known as the sensory integration room, to which children are taken by the SNA if they ‘act-out’ (this is a term used to describe behaviour which could lead a child to injure themselves or others). This room is carpeted and has therapeutic toys, such as body rollers, sensory balls, bean bags etc. SNAs are also expected to undertake yard duty involving the supervision of pupils in conjunction with a teacher.
Ms M told the Court that the role of a SNA in the Respondent school is particularly demanding. It is a caring role and staff are trained to provide feeding, toileting and other care activity to the pupils while at school. Many of the children present challenging behaviour and it may not be safe to leave them in a room with others. In such cases the SNA is required to remove the child to a safe environment. In Ms M’s opinion the work of an SNA requires every faculty that an able bodied person has. Children often throw themselves on the ground and the SNA may have to pick them up. One class caters for pupils ranging in age from 13 to 19. They are physically strong and caring for their needs can result in injuries to staff. Since September of last year 10 to 12 SNAs have suffered injuries at work. The older children also leave the school during the day as part of their preparation for independent living and they must be accompanied and supervised by an SNA while engaged on this activity.
Ms M described the process by which approval is obtained for the employment of SNAs. She told the Court that originally approval was obtained from the Department of Education but this function is now vested in the National Council for Special Education (NCSE). In March of each year the school applies to the NCSE for an allocation of funding to employ SNAs. It provides the NCSE with a profile of its pupils and a report on their needs. The allocation is made in June and this determines the number of SNAs that can be employed for the following school year. An allocation of an additional 0.5 SNA was made in the current year because the school is to receive two very disabled children in the next school year.
The Complainant worked in a class comprising children with profound disabilities. Because of the nature and degree of disabilities from which these children suffer three SNAs were assigned to that class. It was Ms M’s evidence that the Complainant was talented and committed to her work. She was on friendly terms with the Complainant over many years and had remained in contact with her during the period since her accident and during her hospitalisation.
Turning to the events surrounding the Complainant’s request to return to work, the witness said when a staff member is absent on prolonged sick leave the school is obliged to refer them to a named occupational health practice. The Complainant was accordingly referred to this practice for assessment. The Respondent received a written report from Dr M, who had assessed the Complainant. The conclusion of this report was that the Complainant was fit to return to work and perform some duties. However this advice was subject to the Respondent obtaining a risk assessment. The chairperson of the Board of Management suggested a named firm to undertake such an assessment. Following receipt of the assessment report the witness discussed its content with Dr M. It was felt that the report was inadequate in a number of respects. Dr M recommended that an occupational therapist be engaged to undertake a second assessment. On foot of this recommendation Ms McG was commissioned to carry out an assessment of the Complainant’s capacity and the risk associated with her employment as a SNA. Following receipt of this report it was referred to Dr M. Subsequently the Board of Management obtained a report from Dr M which concluded that the Complainant was not medically fit to work as a SNA. Faced with that opinion the Board of Management felt that it could not allow the Complainant to return to work and she was informed accordingly.
In relation to the Complainant’s evidence to the effect that she had been told by Dr M that the Respondent was not in a position to accommodate her disability, the witness accepted that she had a discussion with Dr M on this matter. While she could not recall the verbatim content of their conversation the witness believed that she had told Dr M that providing the type of accommodation required by the Complainant would be very difficult. Ms M did not accept that she had told the doctor that the Respondent would not provide the Complainant with accommodation.
In relation to the secretarial role that the Complainant had performed, the witness told the Court that following the illness of the permanent secretary the Complainant was allocated an additional 10 hours per week to perform secretarial duties. She was paid out of a special grant that the Respondent had obtained for administration. Following the death of the permanent secretary the post was filled on a full-time basis. Subsequently, the Respondent obtained an increase in its grant which enabled it to employ two full-time secretaries.
The Court was told that the Complainant was not interested in taking up one of these secretarial posts on a full-time basis. The post was not pensionable and would have involved a reduction in the Complainant’s overall remuneration. The witness accepted that the Complainant had continued to perform part-time secretarial duties up to the time of her accident. Subsequently, one of the two secretaries was let go and an extra cleaner was employed. The Complainant had never sought to return to work in a secretarial capacity.
It was Ms M evidence that the decision of the Board of Management not to allow the Complainant return to work was based on the advice of Dr M and on the conclusion of Ms McG that the Complainant could not work full-time and perform the full range of duties attaching to her role as an SNA. The witness accepted that Ms McG had recommended that the Complainant be accommodated as a ‘floating’ SNA but no such position existed.
In cross examination the witness was asked if she had formed a view in relation to the Claimant’s capacity before receiving the final report of Dr M. She said that the level of accommodation that would be required in order to allow the Complainant return to work was not possible.
The witness also accepted that she had been informed that Dr M and the Complainant had agreed a possible return to work date of 8thMarch 2011 but that this was conditional on the result of a risk assessment. The occupational therapist had recommended using the Complainant as a ‘floating’ SNA but no such position exists. Ms M told the Court that she had spoken to a named official of the National Council for Special Education who informed her that the engagement of a SNA in such a capacity would not be approved.
The witness also accepted that the Complainant was not asked to make submissions or to comment on the risk assessment report before the Board of Management decided that she could not return to work.
In response to questions from the Court the witness agreed that she had spoken to Dr M in relation to the feasibility of relieving the Complainant from some duties before he finalised his report. She told Dr M that this would be difficult. Ms M accepted that she was of the opinion that the Complainant could only return to work if she was able to perform all of the duties of an SNA. She expressed this opinion to Dr M before the matter was discussed by the Board of Management.
In response to further questions from the Court the witness said that at the material time there were 26 permanent and one substitute SNA employed. Ms M told the Court that she had not considered reallocating duties that the Complainant could not perform amongst the other SNAs. She said that it would be unfair to do so and it would involve the other 26 SNAs undertaking additional heavy lifting and other physically demanding work. The witness thought that this could have health and safety implications for them. The witness did not discuss the possibility of reallocating tasks in this way with the other SNAs nor did she obtain advice on the health and safety implications of such reallocation.
The witness told the Court that the decision not to allow the Complainant to return to work was taken by the Board of Management after extensive discussion and it was based on results of the risk assessment and the advice of Dr M to the effect that the Complainant was medically unfit to work as an SNA.
Evidence of Ms McG
This witness gave evidence concerning the risk assessment that she had undertaken in relation to Complainant’s proposed return to work. Ms McG holds a BSc in Occupational Therapy which she obtained in 1990. She worked in rheumatology, neurology and rehabilitation in Ireland and in the USA. She obtained a Masters in Science Degree in Ergonomics from Loughborough University, UK in 1999. She has extensive experience in assessing the abilities of people with disabilities.
The witness gave evidence in relation to the report which she had produced for the Respondent in relation to the Complainant’s capacity to work as an SNA. A copy of her report was put in evidence.
The witness told the Court that she obtained a job description for the role of SNA. The review was conducted over two days. On the first day of her assessment she visited the Respondent school and assessed the physical layout of the building. She found that the building was well laid out and fully accessible for a wheelchair user. She also looked at the type of job that the Complainant would be expected to do. On the second day the Complainant attended at the school and the witness observed her in undertaking the work of an SNA. The witness told the Court that the role in question turned out to be more demanding that she had anticipated.
On the first day the witness looked at the class in which the Complainant had previously worked. There were five pupils in that class all of whom had profound disabilities. This class is fitted with a hoist for lifting the children but it did not cover the entire room. She concluded that this hoist could only be safely operated by two able-bodied people. There was also equipment used in toileting which required foot operation. Given the profile of pupils in this class and their physical needs the witness decided that the Complainant could not safely work there. The witness also considered the suitability of the ‘adult’ class but decided against it as the pupils attached to this class leave the school from time to time and need to be accompanied. While the Complainant can propel her wheelchair she could not do so over the distance that the pupils would typically travel while outside the school.
She had discussions with the deputy principal of the school and decided that the most suitable classes for the Complainant were the junior and middle classes. It was decided to assess the Complainant while working in these classes.
The Complainant was first assessed in the junior class. The witness followed the Complainant during the course of the day and observed her at work. There were seven children in this class whose average age was nine. One of the children uses nappies. Another child is prone to hitting out. During the witnesses’ observations this child had to be removed to the integration room. Ms McG formed the view that the Complainant could be in danger of being hit by this child. She could not move the child to the integration room unaided. Other children required physiotherapy and had to be moved to a mat on the floor. The Complainant could not undertake that task.
The integration room is covered with mats and contains a lot of therapy equipment. This restricted the Complainant’s ability to propel her wheelchair.
The second class assessed had 2.5 SNAs assigned to it. One child had epilepsy and two others had to be escorted to the bus. According to Ms McG, the Complainant gave good assistance in this class but there were certain children that she could not work with.
The witnesses’ findings as to the tasks that the Complainant could and could not perform were set out in tabular form in her report. Her conclusions were expressed in the following terms: -
- “Table 1 describes the duties that would be suitable to [Complainant]. It is clear that she is limited from assisting children with physical care needs. Safety is the main concern for [Complainant], staff and children. Both classes 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 is not a limitation for [Complainant]. Some adjustments are required to toilets and bathrooms and minor layout changes. However there is no requirement for specialist equipment.
The recommendation is that [Complainant] could act as a floating SNA. The risk assessment /care needs sheet (appendix 2) used to assess children should be used to identify children that [Complainant] could work with. She can perform SNA duties with children who need verbal or physical prompts. It is not recommended that [Complainant] work with children who act out physically.
I hope [the Respondent] have the resources to support [Complainant] 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.”
The witness said that she had used the term ‘floating SNA’ in her report. She now believed that this was an inappropriate term to use. She told the court that what she meant was that the Respondent should consider reallocating tasks amongst the SNAs so as to relieve the Complainant from a requirement to perform those tasks that she could not perform. The witness gave it as her opinion that the Complainant could work with the more moderately disabled children.
Evidence of Doctor M
Doctor M gave evidence in relation to the various assessments that he made of the Complainant. Doctor M qualified as a general practitioner in 1995. He later qualified as a consultant in occupational health. He works through a named occupational health practice.
Doctor M recalled the Complainant’s first consultation. He reviewed her medical condition and he also reviewed the report that had been prepared by the NRH. At that time he felt that she could return to work but he felt that a risk assessment should be prepared. He did not go into all of the tasks involved in her role as an SNA. He was subsequently provided with a copy of the first risk assessment.
Following the first risk assessment he again saw the Complainant. He felt that nothing had changed from her previous visit. He told the Court that his role is to try and assist those who are referred to him in returning to work and that was his approach towards the Complainant. He felt that the assessment that had been undertaken was inadequate and he recommended that a second assessment be undertaken. He nonetheless discussed a possible return to work date with the Complainant. He was subsequently furnished with a copy of the second report.
An appointment was then made for him to see the Complainant for the third time. On the day before the appointment he reviewed the Complainant’s file and he again read the second assessment report. He telephoned the school principal and enquired as to the degree of accommodation that could be provided to the Complainant. Dr M recollection was that Ms M 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 the Complainant’s return. Dr M understood from this conversation that the Complainant could only return to work if she could perform the work of an SNA in its entirety.
Dr M was satisfied that the Complainant’s condition was such that she could not perform the role of an SNA in its entirety. In these circumstances he felt obliged to conclude that the Complainant was medically unfit to return to work.
Dr M was referred to the Complainant’s evidence on this point. He said that contrary to the Complainant’s understanding the school principal did not call him to say that the Respondent could not provide the Complainant with the accommodation necessary to allow her to resume working. He made the call to the school principal.
Asked by the Court what he understood to be the form of accommodation needed by the Complainant in order for her to return to work, Dr M said that if would be necessary to reorganise the duties of the post so as to relieve the Complainant from carrying out those tasks that she could not perform.
Evidence of Ms B
Evidence was given by Ms B who is the deputy principal of the Respondent school. She also teaches the junior class. The pupils in that class have disabilities that are classified as severe to profound.
The witness described the profile of those attending the school. She told the Court that there are currently 73 pupils on the roll. 28 of those pupils have complex needs, that is to say they have more than one disability. 46 pupils have significant care needs and need total support. Many of the pupils present challenging behaviour and require one-to-one assistance.
There are 18 pupils who suffer from epilepsy; four require peg feeding and two have specific toileting needs. Four pupils require medication which must be administered during the school day.
Evidence of Mr T
This witness is the principal of another special school catering for children having similar needs as those attending the Respondent school. This school is located in the same county as the Respondent school. This witness was tendered to provide expert evidence on the demands placed on an SNA in such schools. Mr T is often called upon to participate in the interview and selection of staff in special schools, including the selection of SNAs. It was Mr T’s evidence that the role of an SNA has changed because the degree of disability suffered by children attending this type of school has changed. It is now the practice to educate children with milder forms of disability in mainstream schools with the result that only those with more severe forms of disability are educated in special schools such as the Respondent school. Mr T summarised the situation as being that these schools now cater for children that no other school will take.
According to Mr T the role of an SNA must be looked at in its entirety. It is multi-functional and very demanding. He said that when he first worked in a school for children with disabilities there was four classes in his school for children with moderate disabilities. There is now only one class catering for children who are so classified.
It was Mr T’s evidence that in order to work as an SNA in a special school such as the Respondent a person needs to be fully able-bodied and flexible. Mr T told the Court that he would not consider employing a person with a disability.
It was submitted on behalf of the Complainant that the Respondent had failed to properly consider how it might discharge its duty to provide reasonable accommodation in this case. Reliance was placed on the decision of this Court inHumphries v Westwood Fitness Club E.L.R 296 wherein a three stage test was formulated for deciding if the duty to provide reasonable accommodation was discharged. This test requires the employer to consider what if any accommodation could be provided which would allow the disabled person to become fully capable of continuing in employment. The third limb of this test places an obligation on the employer to provide the employee with a full opportunity to participate at every level of the enquiry and to present relevant medical evidence and submissions. It was submitted that the Respondent had failed to consult with the Complainant in relation to the various reports and assessments considered by the Board of Management of the Respondent.
It was further submitted that in his first two reports to the Respondent Dr M had concluded that the Complainant was fit to return to work. The final report, which appeared to find the opposite, was influenced by Ms M who had told Dr M that the Respondent could not provide the Complainant with the accommodation that she needed in order to return to work. That instruction to Dr M had been given without full consideration of all the material facts.
The Complainant also relied upon the decision of this Court inA Worker v An Employerin which this Court had pointed out that in an appropriate case the obligation to provide reasonable accommodation can include an obligation to relieve a disabled worker of duties that he or she cannot perform because of his or her disability. In advancing that submission the Court’s attention was drawn to s.16(4)(b) of the Act which provides that reasonable accommodation may include the appropriate distribution of tasks within the workplace.
It was also submitted that the Respondent had given no consideration to offering the Complainant part-time work in the secretarial role that she previously fulfilled.
The Respondent submitted that the Act does not require an employer to continue an employee in employment who is not fully capable of undertaking the job that he or she was employed to do. In advancing that submission the Respondent relied on the decision inHumphries v Westwood Fitness Club. It was submitted that the decision in that case is authority for the proposition that where an employer forms thebona fidebelief thata disabled employee is unable to perform the full duties of their employment the Act provides a complete defence to a claim of discrimination on grounds of disability. It was submitted that theratioof that case was followed by this Court in Determination EDA1318,Shannon Regional Fisheries Board v A Worker.
The Respondent contends that it fully complied with the three tier test needed to establish such abona fidebelief. In particular, the Respondent submitted that it had taken independent advice concerning the Complainant’s capacity to perform the role of an SNA and that it had acted on that advice. It was further submitted that the Complainant was afforded a full opportunity to participate in the assessments undertaken on behalf of the Respondent.
It is the Respondent’s case that what the Complainant is seeking is the creation of a different job to that for which she was employed involving breaking down the role of an SNA and reconstructing it with only those parts that the Complainant is capable of performing. This, it was submitted, goes considerably further than what the law requires. In that regard reliance was placed on the decision of this Court inDepartment of Justice Equality and Law Reform v Kavanagh 23 ELR 34.
In this case the Complainant has taken a narrow point. Her claim is grounded on the alleged failure of the Respondent to take appropriate measures to allow her to participate in employment. The requirement that the law has imposed on employers in that regard is generally referred to as the duty to provide reasonable accommodation, and will be referred to as such in this Determination. It is noteworthy that in her claim to the Equality Tribunal the Complainant did not seek redress for discriminatory dismissal on grounds of her disability. Her claim, therefore, turns on the correct construction and application of s.16 of the Act. That section provides: -
- (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.
- (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,
- (a) For the purposes of this Act 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) The 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 or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(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 is 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.
- (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;
- (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
Article 5 of the Directive provided: -
- 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.
There are a number of recitals contained in the preamble to the Directive which provide assistance in identifying the purpose which it is intended to pursue
Recital 17 provides: -
- 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.
- 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.
- 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.
These recitals have, however, been taken into account by the drafters of the domestic statute. Recital 17 of the Directive is reflected in s.16(1)(b) of the Act although it should be noted that whereas that provision refers to a person beingfullycapable of undertaking the duties of a position recital 17 refers to a person being capable of performing theessential functionsof the post [emphasis added]. It must also be noted that recital 17 is expressly stated as being without prejudice to the obligation to provide reasonable accommodation for persons with disabilities.
The import of recital 20 is reproduced at paragraph (b) of the definition of ‘appropriate measures’ contained at s.16 (4) of the Act and provides that the term includes, inter alia, adapting working time and the distribution of tasks.
The Scope of the Duty
The practical scope of the obligation to provide reasonable accommodation was considered by this Court in a number of previous cases. InHumphreys v Westwood Fitness Club E.L.R 296, upon which both parties rely, the extent of that duty was considered in the context of a claim by Ms Humphries that she had been dismissed from her employment on grounds of her disability.
Here the claimant worked for the respondent as a childcare assistant in a cr�che facility operated by them. She developed anorexia which later developed into bulimia. The claimant went on sick leave to undergo treatment. After her return to work, and just as it appeared that her condition had stabilised, a number of incidents occurred which caused the respondent concern in respect of the manner in which she was performing her duties. The claimant received two verbal warnings in respect of these matters. A number of months later the claimant became depressed and requested more time off work as she wished to be readmitted to hospital. At this stage, the respondent, without obtaining medical or psychiatric advice in respect of the claimant's disorder or any form of risk assessment in relation to her condition, formed the view that the claimant was a danger to herself and the children in her care and resolved to dismiss her. The respondent asked the claimant to attend a meeting where she was informed of the decision to dismiss her, and was subsequently sent a letter of dismissal.
As appears from the headnote to the report this Court determined as follows: -
- (1) That as the claimant's dismissal arose primarily from the respondent's belief that her disorder would impair her ability to carry out the duties for which she was employed, her dismissal was prima facie discriminatory unders.8 of the Employment Equality Act 1998.
(2) There is a complete defence unders.16 of the Employment Equality Act 1998to a claim of discrimination on grounds of disability under s.8, if it can be shown that the respondent formed a bona fide belief that the claimant was not fully capable of performing the duties for which she was employed.
(3) In order to form such belief, the respondent would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances but would at a minimum involve looking at medical evidence to determine the level of impairment arising from the disability and its duration. If it is apparent that the employee is not fully capable, the respondent is required under s.16(3) to consider what if any special treatment or facilities may be available by which the employee can become fully capable and account must be taken of the cost of such facilities or treatment.
(4) Such enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.
The decision of this Court in aWorker v An Employer E.L.R. 159 related to a claim of discrimination on grounds of disability. The complainant was employed by the respondent as a fisheries protection officer. He was required to drive in the course of his employment, but this was ancillary to his main duties. He was diagnosed as suffering from multiple sclerosis in 1996. In 2001 the complainant's driving licence was restricted so as to confine him to driving vehicles adapted with hand controls. On a number of occasions the complainant asked if one of the respondent's official vehicles could be adapted with hand controls so as to facilitate him in driving. He was told that he would not be expected to drive and could travel in the vehicle as a passenger. After a number of periods on sick leave, the complainant resigned his employment in January 2003.
The complainant submitted that as a result of the respondent's failure to have hand controls fitted to one of the official vehicles he ceased to be a full member of the team in which he worked. He said that this caused him anxiety and stress which resulted in an exacerbation of his illness. In its defence the Respondent pointed out that it had relieved the Complainant of the obligation to drive in the course of his employment and that this amounted to providing him with reasonable accommodation so as to allow him to continue in employment notwithstanding his disability.
In its Determination this Court pointed out that unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. The Court went on to adopt the reasoning of Baroness Hale of Richmond who stated the position thus in relation to the corresponding UK provisions in the House of Lord decision inArchibald v Fife Council I.R.L.R. 651 as follows: -
- “But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment.”
- “The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (seeBritish Gas Services Ltd v McCaull I.R.L.R. 60).
The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales inMid Staffordshire General Hospitals NHS Trust v Cambridge I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.
This necessarily involves discussing the matter with the employee, or their medical advisors. It also places an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee. (see the Determination of this court inA Health and Fitness Club v A Worker Labour CourtDetermination 037 ( February 19, 2003) which was upheld by theCircuit Court (reported together asHumphries v Westwood Club E.L.R. 296))”.
- In this case, the respondent realised that the complainant could not fulfil the full range of duties attaching to his occupation. The respondent's response was to relieve the complainant, at least on a temporary basis, from the obligation to perform those tasks which he could not perform or had difficulty in performing. This included the requirement to drive an official vehicle. As far as the respondent was concerned, it was thus affording the complainant special treatment which allowed him to continue in his employment. The complainant did not demur from what he had been told nor did he make known to the respondent his concerns at not being able to drive in the course of his employment.
Department of Justice Equality and Law Reform v Kavanagh 23 E.L.R. 34 concerned a claim of discriminatory dismissal by the complainant who was employed as a prison officer. He was diagnosed with benign essential hypertension (“BET”). He went absent on sick leave and did not return to work, but rather applied for early retirement from the Irish Prison Service on grounds of ill health. He was examined on behalf of the respondent by the chief medical officer of the civil service who concluded that he was fit to return to work. The complainant appealed this decision and was referred by the respondent to an independent medical referee who also determined that he was fit for employment. As the complainant did not then return to work, he was removed from the payroll.
The complainant submitted medical reports conflicting with the previous findings and the respondent arranged for him to see the independent medical referee again. However, the independent medical referee's opinion remained unchanged. The respondent arranged for the complainant to meet with an officer from its human resources directorate who suggested that the complainant could discuss the possibility of assuming lighter duties on his return to work. The complainant was not amenable to this suggestion and he was offered the opportunity to make a further submission. The complainant took this opportunity, reiterating previous arguments and requesting a referral to an independent cardiologist. This request was rejected by the chief medical officer on the ground that no further information on the complainant's health was required.
The respondent subsequently informed the complainant that the Minister for Justice had agreed to recommend to the Government that the complainant be dismissed. The complainant was given 14 days to appeal and he did so, requesting an oral hearing before the Minister and a transfer to a less stressful position within the department that did not involve contact with prisoners. The respondent advised the complainant that there would be no oral hearing and that he was free to apply for other positions in the department through the Public Appointments Service
In this case reliance was placed by the Respondent on s.37(3) of the Act, which provides: -
- “It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.”
- It is not disputed that the complainant is incapable of taking up the entire range of his duties by reason of his condition. The complainant's case in essence is that if he suffers from a disability then the respondent must reasonably accommodate this disability and that this reasonable accommodation involves moving him to a position in which he would have no contact with prisoners. The Court is of the view that this is an incorrect interpretation of the provisions of s.16. The purpose of s.16(3) is to provide a person with a disability with “appropriate measures” or “reasonable accommodation” in order to render that person fully capable to undertake the full range of duties associated with their posts.
In this particular case the complainant's suggestion that the respondent provide him with alternative employment outside of any contact with prisoners could not be deemed to come within the provision of “appropriate measures” as provided for in s.16, as it will not enable him to carry out the full range of his duties as a prison officer.
Once the complainant cannot carry out the full range of duties due to an alleged disability and no reasonable accommodation can enable him to do so then the respondent is entitled to rely on the provision of s.37(3) of the Acts as a complete defence to a complaint that they failed to provide appropriate measures to accommodate his disability within the meaning of s.16(3).
European Case Law
The Court has considered the decision of the CJEU in joined cases C-335/11 and C-337/11,HK Denmark –acting on behalf of Ring v Dansk Almennyttigh BoligselskabandHK Denmark, acting on behalf of Werge v Danks Arbejdsgiverforening, acting on behalf of Pro Display A/s IRLR 57. The Court drew the parties’ attention to this decision and invited them to make supplemental submissions on its relevance to the issues arising in the instant case. The Court subsequently received submissions from both parties, which have been taken into account in this Determination.
Both cases came before the Court of Justice by way of a reference by a Danish Court for a preliminary ruling, pursuant to Article 267 TFEU. The same questions arose in both cases and they were conjoined by the Court.
The Court was asked to rule on questions raised in the main proceedings concerning the meaning to be ascribed to the term disability for the purposes of the Equal Treatment Framework Directive 2000/78/EC and, in particular, the point of distinction between disability and illness. The Court was also asked to rule on whether the obligation under the Directive to provide a disabled worker with reasonable accommodation included an obligation to reduce her working hours in circumstances where she was unable to work fulltime due to her disability. An issue arose in the case concerning the extent of the duty imposed on an employer to provide a disabled worker with reasonable accommodation and whether that duty included an obligation to offer a disabled worker a facility to work part-time.
In its judgment the Court noted that in 2010 the European Union ratified the United Nations Convention on the Rights of Persons with Disabilities. The Court observed that in accordance with Article 216(2) TFEU, where the Union concludes international agreements they are binding on its institutions, and consequently they prevail over acts of the European Union (See Case C-366/10,Air Transport Association of America v Secretary of State for Energy and Climate Change All ER (EC) 1133) The Court went on to point out that the primacy of international agreements concluded by the European Union means that instruments of secondary legislation of the Union must be interpreted, as far as possible, in a manner consistent with those agreements. It followed, according to the Court, that Directive 2000/78/EC, in so far as it relates to disability, must now be interpreted in harmony with the UN Convention.
The Court pointed out, at paragraphs 30 and 31 of its judgment: -
- It follows fromDecision 2010/48that the European Union has approved the UN Convention. The provisions of that Convention are thus, from the time of its entry into force, an integral part of the European Union legal order (see, to that effect, Haegeman (R and V) Sprl v Belgium,C-181/73 ECR 449, paragraph 5).
Moreover, according to the appendix to the Annex II to that decision, in the field of independent living and social inclusion, work and employment,Directive 2000/78is one of the European Union acts which refer to matters governed by the UN Convention.
- 'The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.'
In considering the extent of the obligation imposed on employers by Article 5 of Directive 2000/78/EC, to provide reasonable accommodation to people with disabilities, Advocate General Kokott pointed out, at paragraphs 48, 49, 50 and 51 of her opinion: -
- The first sentence ofArticle 5of Directive 2000/78 provides that reasonable accommodation is to be provided in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities. This means that employers must 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. Employers are exempt from that obligation where such measures would impose a disproportionate burden on them.
The purpose of that provision is to enforce not only the equal treatment but also the equal status of a disabled person and thus to enable him to participate in employment.
Article 5of Directive 2000/78 itself provides simply that the measures must be 'appropriate' and 'needed in a particular case' in order to enable a person with a disability to have access and so on to employment.
However, recital 20 in the preamble to the Directive brings greater clarity to that provision. According to that recital, 'effective and practical measures' are to be provided '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'.
- As that article [Article 5] states, the employer is required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. Recital 20 in the preamble to the Directive gives a non-exhaustive list of such measures, which may be physical, organisational and/or educational.
- In accordance with the second paragraph of Article 2 of the UN Convention, 'reasonable accommodation' is 'necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms'. It follows that that provision prescribes a broad definition of the concept of 'reasonable accommodation'.
- Thus, with respect toDirective 2000/78, that concept must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers.
As recital 20 in the preamble toDirective 2000/78and the second paragraph of Article 2 of the UN Convention envisage not only material but also organisational measures, and the term 'pattern' of working time must be understood as the rhythm or speed at which the work is done, it cannot be ruled out that a reduction in working hours may constitute one of the accommodation measures referred to in Article 5 of that Directive.
It should be observed, moreover, that the list of appropriate measures to adapt the workplace to the disability in recital 20 in the preamble toDirective 2000/78is not exhaustive and, consequently, even if it were not covered by the concept of 'pattern of working time', a reduction in working hours could be regarded as an accommodation measure referred to in Article 5 of the Directive, in acase in which reduced working hours make it possible for the worker to continueemployment, in accordance with the objective of that article.
- It must be recalled, however, that, as stated in recital 17 in the preamble,Directive 2000/78does not require the recruitment, promotion or maintenance in employment of a person who is not competent, capable and available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation for people with disabilities, which includes a possible reduction in their hours of work.
- Moreover, in accordance with Article 5 of that Directive, the accommodation persons with disabilities are entitled to must be reasonable, in that it must not constitute a disproportionate burden on the employer.
In the disputes in the main proceedings, it is therefore for the national court to assess whether a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employers.
While the case related specifically to the provision of reduced hours as a means of accommodation, the underlying rationale of the decision applies equally to the allocation of tasks as a mode of accommodating people with disabilities as this is also referred to in recital 20 of the Directive and at s.16(4) of the Act. Finally, at paragraph 59 of the judgment the Court held that it was for the national court to assess whether the reduction in working hours represents a disproportionate burden on the employer. By parity of reasoning it is also for the national Court to assess if a redistribution of tasks represents a disproportionate burden on the facts of a particular case in which that question arises.
A number of general principles can be extracted from the cases discussed above. It must first be recognised that the law in relation to discrimination on grounds of disability operates differently to that in relation to other forms of discrimination. Other forms of discrimination occur where people whose circumstances are the same are treated differently. So, as Baroness Hale pointed out inArchibald v Fife Council,difference in gender, race or sexual orientation must always be regarded as irrelevant. But the law recognises that the difference between people who are able bodied and those who are disabled are not irrelevant in the context of employment. The duty to provide reasonable accommodation to people with disabilities is imposed so as to diminish as far as possible the relevance of those differences so as to achieve for the disabled person substantive equality and to assist their integration in the working environment. The law in relation to disability requires a measure of positive discrimination in that an employer may be obligated to treat a disabled worker more favourably that an able-bodies person.
The provision of reasonable accommodation is a means by which people with disabilities can enjoy and exercise their fundamental human right to work and earn a livelihood. The duty which the UN Convention on the Rights of Persons with Disabilities, Article 5 of Directive 2000/78/EC and s.16(3) of the Act imposes on employers is a means to that end. While s.16(4) of the Act and recital 20 of the Directive are illustrative of the type of measures that can be taken they do not provide an exhaustive list.
It is also clear from the authorities 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. But that principal is without prejudice to the obligation to provide reasonable accommodation where it is needed. That may involve making adjustments in the allocation of tasks amongst the workforce so as to assign to a person with a disability those tasks that he or she can perform while allocating tasks beyond their capacity to others. But that duty is not unlimited. In that sense the reference to the ‘essential tasks’ of a position can be understood as referring to the essential tasks of a reorganised position. It is true that reorganising the work associated with a particular job may involve a significant change in the contractual position of the parties. But altering working hours also involves a considerable interference with the legal relationship between employer and employee, as was recognised by Advocate General Kokott inHK Denmark,at paragraph 59 of her opinion.
However, the duty on an employer must remain within the boundaries of what is reasonable and proportionate, including the financial implications that may be involved. The question of whether a disabled person has the capacity to perform the essential tasks associated with a position obviously goes to the question of reasonableness and proportionality. Moreover, if the requisite reallocation of tasks involves the employment of additional staff, it goes to the question of cost. The standard to be applied is that of a reasonable employer who understands his or her legal duty and wishes to uphold the right of a disabled employee to work and earn a livelihood.
There is no reason to exclude in principle extending that duty 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. In defending its position the Respondent relied upon the wording of s.16(1)(b) of the Act, in contending that it was not required to continue the Complainant in employment in circumstances where she cannot fully discharge the duties of the job that they held before becoming disabled. That, however, is not what the section provides.
Section 16(1)(b) of the Act provides that an employer is not obliged to employ or maintain an employee inaposition the duties of which they cannot perform. If a job is modified so as to reflect a disabled persons abilities they are then able to fully discharge the duties attached to the position as modified. Moreover, as previously observed in this Determination, Directive 2000/78/EC provides that an employer is not obliged to employ a person in a position, theessentialfunctions of which they cannot perform but this is without prejudice to the obligation to provide a disabled person with reasonable accommodation. If there is a difference between the provision of s.16 of the Act and the provisions of the Directive, the provisions of the Directive must take precedence.
The approach of the UK Courts on this point is instructive although the relevant legislation in that jurisdiction is differently worded.Archibald v Fife Councilconcerned a road sweeper who had become totally incapable of performing the work for which she had been employed. She was dismissed on that account. A question arose as to whether the duty to provide reasonable accommodation required the employer to transfer the Complainant to another position that had become vacant without going through the normal selection process.
An Employment Tribunal found that the employer had not breached its duty towards the Complainant. The Employment Appeals Tribunal in Scotland dismissed her appeal. On further appeal, the Court of Session held that the duty of adjustment arises where the disabled person concerned is placed at a substantial disadvantage in the performance of their particular employment in comparison with persons who are not disabled and where it is open to the employer to make adjustments to the arrangements of that particular employment. It held that there is no duty of adjustment where there is nothing that the employer can do to prevent the disabled person from being placed at a disadvantage. Thus, it was held, the duty of adjustment does not extend to the step of affording a disabled person a quite different job, which would involve a fundamental change in the nature of the employment.
On final appeal the House of Lords disagreed. It held that the Court of Session erred in dismissing the applicant's appeal on grounds that the duty to make adjustments was linked to the employee'sparticularemployment and did not arise if there was nothing that the employer can do to prevent the disabled person from being placed at a disadvantage [emphasis added].
A similar question arose before the UK Employment Appeals Tribunal inChief Constable of South Yorkshire Police v Jelic IRLR 774. This case involved a police officer who became unable to perform the duties of his position because of a disability. He was retired compulsorily on medical grounds. He claimed that it would have been reasonable to swap his job with that being performed by another police officer who was engaged in duties that the Complainant could perform. It was contended that in a disciplined police force the Respondent could have required the other officer to move thus leaving a vacancy that the Complainant could fill. An Employment Tribunal found that in refusing to consider this option the Respondent had failed in its duty to provide the Complainant with a reasonable adjustment (reasonable accommodation). On appeal the EAT upheld the decision of the Employment Tribunal on that point. As appears from the headnote, the EAT held that a tribunal is not precluded, as a matter of law, from deciding that swapping roles would be a reasonable adjustment, or from holding that it would be a reasonable adjustment to create a new job for a disabled employee, if the particular facts of the case supported such findings.
These cases are not congruent on their facts with the instant case, and the legislative framework within which they were decided was different. They nonetheless illustrate the breath that can be ascribed to the notion of reasonable accommodation. As was pointed out by the EAT (per Cox J) inChief Constable of South Yorkshire Police v Jeliceach case will turn on its own facts and the duty of reasonable accommodation (or reasonable adjustment as it is known in UK law) cannot be precisely defined. It will always be determined by the application of objective standards of reasonableness in the circumstances of a particular case.
In its submissions in the instant case the Respondent placed reliance on the decision of this Court inDepartment of Justice Equality and Law Reform v Kavanaghin advancing its contention that an employer cannot be obliged to continue an employee in employment unless they are fully capable of performing all of the duties associated with the position in which they are employed. In the Court’s opinion that case is not apposite the instant case. InKavanaghthe Complainant was a prison officer who wanted to be employed in a totally different role that did not involve any of the key functions of his employment. Moreover, the provisions of s.37(3) of the Act which relates to employment,inte alia,in the prison service came into play in that case and were taken into account by the Court in reaching its Determination. Moreover, the provisions of European law which are raised by this case where not raised or argued in that case. For these reasons the Court cannot accept that the decision inDepartment of Justice Equality and Law Reform v Kavanaghcan be regarded as dispositive of this appeal.
The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form abona fidebelief that they are impossible, unreasonable or disproportionate. As was pointed out by this Court inHumphries v Westwood Fitness Cluband inA Worker v An Employera 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.
The Evidence Considered
The Respondent has characterised the claim made by the Complainant as amounting to a contention that an entirely different job should have been created in order to accommodate her needs. This contention is based on the recommendation contained in the report of Ms McG that she could be employed as a ‘flouting SNA’. In her evidence to the Court Ms McG accepted that her use of that term was somewhat infelicitous. Ms McG told the Court that what she meant by that term was that the work of all of the SNAs employed by the Respondent could be reorganised so as to confine the Complainant 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.
That would undoubtedly have involved a significant change in how the care needs of those attending the school could be met. But it cannot be fairly characterised as expecting the Respondent to create a wholly new job. The Complainant at all times wished to return to work as an SNA but with the various components of that role reorganised so as to relieve her of responsibility for undertaking those tasks that she could not perform.
In her evidence to the Court Ms M dismissed this possibility because, she said, it would involve the other SNAs in undertaking additional lifting and other physically demanding work. She said that this would be unfair to the Complainant’s colleagues and could pose a health and safety risk for them. Ms M accepted that she had never discussed this possibility with the other 26 SNAs nor did she have an assessment undertaken of the possible impact on their health and safety. The Court is satisfied on the evidence that this possibility was never adequately considered by the Respondent.
Ms M also told the Court that the decision of the Respondent’s Board of Management was based on the advice that it received from Dr M in his final report to the effect that the Complainant was medically unfit to work as an SNA. That report was dated 29thNovember 2011 and related to Dr M’s consultation with the Complainant on 21stNovember 2011. In his evidence to the Court Dr M testified that on the day before his final consultation with the Complainant he had reviewed her file including the assessment report prepared by Ms McG. He telephoned Ms M and enquired as to whether the Respondent could provide the type of accommodation necessary so as to allow the Complainant to return to work. It was Dr M’s evidence that Ms M told him that the Respondent could not provide the necessary accommodation. There was some divergence of recollection between Dr M and Ms M on what was said in the course of this conversation. Ms M’s recollection was that she told Dr M that the provision of accommodation would be very difficult. Dr M’s recollection was that he was told that it could not be provided. However nothing of importance turns on this difference.
In his evidence Dr M told the Court that he was satisfied that the Complainant could not do the job of an SNA in its entirety. Following his conversation with Ms M he believed that if the Complainant returned to work she would be expected to undertake all of the tasks associated with the job of an SNA, which she plainly could not do. He told the Court that in these circumstances he felt that he had no alternative but to certify her as medically unfit to return to work as an SNA.
The conversation between Ms M and Dr M appears to have taken place on or about 20thNovember 2011. The content of that conversation was the principal reason why Dr M revised his earlier conditional opinion on the Complainant’s fitness to resume working and certified her as unfit for work. The conversation between Ms M and Dr M took place before the Board of Management met to consider the Complainant’s future employment in the school.
It was Ms M evidence to the Court that having received Dr M’s report the Board of Management decided that in light of Dr M’s conclusion that the Complainant was medically unfit to resume employment as an SNA it felt that it had no choice but to discontinue her employment at the school. In the course of the hearing of the appeal the Court requested a copy of the minutes of the Board Meeting at which this decision was taken. Following the hearing a copy of the relevant minutes was provided. In relevant part the following is recorded: -
•The Board discussed [the Complainant’s] [medical] Report dated 21stNovember 2011 in detail.
•As already discussed at our Board of Management meeting on the 26thOctober, discussion took place re many challenging duties of SNA in the special circumstances within [name of Respondent school]
•[Ms McG] Occupational Therapist had stated in her risk assessment that [the Complainant] could act as a flouting SNA. With Board permission I contacted the Department of Education outlining [the Complainant’s] case and questioning the feasibility of a flouting SNA. The Department informed me that the school staff is a matter for the NCSE. I phoned the NCSE and spoke with the SENO [named official]. She informed me that the NCSE appoints staff for pupils with disabilities and not for adults.
•In light of this information and [Dr M’s] report it was with deep regret that the Board decided that [the Complainant] would not be suitable for the challenging role of an SNA in [the Respondent school]
•A letter to that effect will be sent to the Complainant.
•[A named person] in [another school] to be contacted re [the Complainant]
•Inform the insurance company re the situation
•It was decided by the Board members not to agree to Mediation (an option presented to the Board by the Union) as it was felt that it would only prolong a decision being made and would not be fair or kind to [the Complainant]
•A letter to that affect [sic] to be sent to the Union re same.
•The Board agreed that the letter to [the Complainant] would not be posted until after Christmas out of care and concern as Board members did not want [the Complainant] to receive such a letter just before Christmas.
It was, however, for the Board of Management, as the Complainant’s employer, to reach its own conclusions on the reasonableness and proportionality of the form of accommodation that was needed in order to facilitate the Complainant’s return to work. Apart from seeking an opinion from NCSE, there is no evidence that the Board of Management ever independently considered that question.
It is also clear both from the evidence given in the course of the appeal and from this minute that the Board was influenced in its decision by Dr M’s conclusion that the Complainant was medically unfit to work as an SNA. However there is no evidence that the Board was made aware that Dr M formed that opinion on the understanding that the Respondent would not or could not make the necessary adjustments in work organisation so as to accommodate the Complainant. Nor was the Board of Management made aware that if those arrangements were made she would be fit to return to work.
The Court is also satisfied on the evidence that the Respondent never considered the possibility of allowing the Complainant to return to work in a part-time capacity with limited duties. Nor did it consider offering her a continuation of the part-time secretarial role that she had previously filled. It is true, as the Respondent pointed out, that the Complainant had never canvased such an option. At all times she wished to return to her primary role full-time. But in the Court’s opinion if that was genuinely not possible a reasonable employer anxious to uphold the rights of a disabled person would have considered these options and discussed them with the Complainant.
There is no doubt that the Complainant was severely limited by her disability in 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 the Complainant 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 Respondent construed its duty too narrowly and took a mistaken view of what the law required in the prevailing circumstances.
The Respondent had a duty to fully consider the viability of a reorganisation of work and a redistribution of tasks amongst all of the SNA so as to relieve the Complainant of those duties that she was unable to perform. That, in effect, was what had been proposed by Ms McG. At the material time the Complainant’s interest were being represented by her trade union. The Respondent might reasonably have sought an input from the Complainant herself and her trade union before making its decision. Furthermore, as was proposed in the first assessment report, the Respondent could have considered returning the Complainant to work with modified duties for a trial period. However, on the evidence the Court is satisfied that the Respondent did not give any real consideration to these possibilities. The Court cannot speculate as to what the outcome might have been if the Respondent’s Board of Management had given proper and adequate consideration to these or any other options that the Complainant may have advanced if given the opportunity to make submissions in defence of her position. Had the Respondent 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 Respondent never considered offering the Complainant 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.
It is clear from the decision of the CJEU inHK Denmarkthat the duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. The duty is imposed on employers and it is for the employer to make an honest and informed decision of what is reasonable and proportionate having regard to all of the material circumstances. That involves putting a number of considerations into the balance including the practicability of what may be required, the costs involved, the disruption that may be caused to the service that the employer provides and the consequences for the disabled person of not providing the accommodation required.
Where an employer reaches an honest and informed decision having considered all of the available options the Court must show a high degree of deference to that decision and should not seek to substitute its opinion on what is possible or reasonable in the particular circumstances of that employment. If, however, the employer fails to properly understand the scope of its duty or fails to adequately consider all of the options that may be available they will have failed in their statutory duty toward the disabled person.
In this case the Respondent did obtain independent professional advice on the Complainant’s capacity. That advice did not rule out the possibility of the Complainant returning to work if certain adjustments were made to the range of tasks that she would be expected to perform. The Complainant was not consulted on the question of how effect might have been given to the recommendation made by the professional advisors. Nor did the Respondent’s Board of Management properly or adequately consider that question. It simply concluded that because the Complainant 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 Respondent 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.
For the reasons set out herein the Court has concluded that by failing to consider all of the options open to them the Board of Management of the Respondent failed to discharge its duty to take adequate measures to provide the Complainant with reasonable accommodation so as to allow her to continue in employment. Accordingly she is entitled to succeed in her appeal.
In the circumstances of this case the Court believes that the appropriate form of redress is an award of compensation. In the circumstances the Court awards the Complainant compensation in the amount of €40,000.
The decision of the Equality Tribunal is set aside and substituted with the terms of this Determination.
Signed on behalf of the Labour Court
12th August, 2014.Chairman
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.