Labour Court to re-consider claim by disabled employee concerning ‘reasonable accommodation’ and the distribution of tasks

MacMenamin J (majority): Employment law - special needs assistant (SNA) - serious injuries suffered due to accident - use of wheelchair - refused permission to return to work - whether unlawful discrimination under the Employment Equality Act, 1998 - 2011, s.6, s.8, and s.16 - 'reasonable accommodation' - 'appropriate measures' - accommodation of disability - “a cost other than a nominal cost” - equality officer - Labour Court - High Court - Court of Appeal - whether a failure to consult with the employee - background of Act - definition of disability - whether employer required to retain a person in a position who was not "fully competent and available to undertake, and fully capable of undertaking, the duties" (s 16, Equality Act 2004) - whether reasonable measures would render the person fully competent - whether measures would be a 'disproportionate burden' - Directives 2000/43/EC, 2000/78/EC and 2000/73/EC - United Nations Convention on the Rights of Persons with Disabilities - EU case law - failure of Labour Court to resolve issue of contacts between school and National Council for Special Education concerning a role for the employee - consideration of return to work - risk assessor's report - report of occupational therapist - nature of pupils with special needs - physical requirements of work - 'task demands' - effect of omitted evidence - 'distribution of tasks' - whether the Act required 'full competence' on the part of the employee - contact with NSCE - attempt to obtain public funding or other assistance - consultation with co-employees.

"[The occupational therapist] commented that because the appellant was in a wheelchair, she was in a more vulnerable position than other staff members, perhaps in instances where a child was “acting-out” by throwing items. She could not move as quickly to get herself out of the way if required, or to intervene to protect a child or a staff member. Students who acted-out or who required physical assistance needed two physically able SNAs. [She] expressed concern that the appellant would not be able to support the other SNA in the instance of a physical outburst that puts that SNA at risk.
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It is abundantly clear that not part, but all, of Ms. McGrath’s evidence played a significant role in the Court of Appeal decision. What was omitted was relevant. Evidence to the effect that the appellant was unable to perform any of the core functions of the job, that she could not work as an SNA in a re-organised environment, and that the role could not be re-arranged to accommodate the appellant, should have been recorded and addressed. I do not say this would have determined the outcome. But alone, or taken in conjunction with the unresolved NCSE issue, this unfortunate omission can only lead to the conclusion that the determination did not fulfil its primary statutory role, and did not determine the complaint in accordance with relevant evidence. Put simply, by not addressing this relevant evidence, the Labour Court did not fulfil its statutory duty.
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The Court of Appeal reversed the High Court judgment, and set aside the Labour Court determination, thereby allowing the decision of the Equality Officer to stand. The court did not consider it necessary to remit the case to the Labour Court, which is the forum charged with evaluating evidence. Both judgments of the Court of Appeal make references to the term “core duties”, but no such distinction is to be found in the Act. One would have thought that, if it was the intention of the legislature to identify the words “core duties” as creating some form of separate category, it would have been simple to do so. Similarly, the term “essential functions” does not occur in the section."

Charleton J (dissenting): The legislation - discrimination - purpose of legislation - discrimination - procedure adopted by employer.

"The thrust of the legislation is thus to outlaw in the workplace only the kind of discrimination based on bigotry, prejudice or racism. To discern that a particular individual is not committed to the work, or that that person lacks the competence for the work or the capability to tackle the work, is not to deny someone employment through unlawful discrimination.
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Certainly, had the board of the school sat down with the applicant and discussed the reports in this case, it may be that no case would ever have been taken. But, what was done, in giving the applicant an opportunity to consult with a doctor and to engage with every aspect of the case on the ground as to the effect which her disability had on the highly responsible and physically demanding work of a special needs assistant sufficed as a procedure. The legislation does not demand, and nor should this Court impose, any further requirement such as one which demands some kind of procedure related to any scheme of accommodation that might be reached. It is for an employer to be open to the prospects for engagement and to consider what can in good faith be done."