Supreme Court decision addresses workplace disability dilemma

KYRAN FITGERALD: Supreme Court decision addresses workplace disability dilemma

It is the ultimate personal nightmare. A qualified medical nurse, you are productively employed as a special needs assistant - or SNA - in the service of children with a wide range of disabilities, both physical and mental. Then, one day, you are struck down and left in a state of paralysis.

In July 2010, Marie Daly, a Kerry based SNA, found herself in this position following an accident while on holiday. She subsequently spent five months at the National Rehabilitation Centre and has remained wheelchair bound.

Clearly, a woman possessed of great determination, she has used all legal means possible to secure her former job at the Nano Nagle school near Killarney. Ms Daly took legal action against the school board following a lengthy series of investigations refused her permission to return to work.

The plaintiff - and, later, appellant - brought her case for discrimination against her employer initially to the Equality Tribunal, since absorbed into the Workplace Relations Commission, and when it was rejected, she succeeded on appeal at the Labour Court, securing an award of €40,000 in compensation.

The High Court upheld this decision. However, the school won, in turn, at the Court of Appeal. A reminder, if one is needed, that the legal road can be a windy and treacherous one for a litigant to travel.

However, the Supreme Court has backed Ms Daly while sending the matter back to the Labour Court for a final decision - Mr Justice McMenamin having concluded, in a well thought out judgement, that the Court "should not act as a surrogate Labour Court".

It will be up to the Labour Court to decide on the extent to which it will be possible for Ms Daly to return to employment at her former place of work.

This has been a long drawn out saga, during which serious legal minds have reached very different conclusions regarding the extent of the requirement on an organisation to accommodate an employee whose capacities have been seriously impacted by physical disability.

The judgement comes at an interesting time. The Government has stated that it aims to increase the employment rate of people with disabilities from 3% to 6% by 2024.

A report, last year, by the Joint Oireachtas Committee on Employment Affairs and Social Protection called for a "root and branch reform" of how state agencies support people with disabilities.

The legal arguments have centred on interpretations of the true meaning of Section 16 of the Employment Equality Act 1998 which deals with the obligation under statute of an employer to reasonably accommodate an employee with a disability or disabilities.

The Equality Tribunal ruled in the school’s favour on the basis that the measures required to accommodate Ms Daly in a reinstated position would give rise to a cost to the school that was "other than nominal."

Judge McMenamin noted that this "nominal cost" test had actually been removed in 2009. He makes it clear, in his judgement, that "the issues that arise in this case are of significant importance to the broader field of disability law."

With this in mind, the Court heard a submission from the Irish Human Rights and Equality Authority as 'Friend of the Court'. It is clear that the school went to considerable lengths to examine the situation before reaching its conclusion that Ms Daly should not be re-employed.

In January 2011, she met with the school’s occupational physician and the following September, an assessment was carried out by an occupational therapist and ergonomist. The specialist noted that the plaintiff had passed her driving test as a wheelchair user and had "good extremity range of motion and strength."

According to the specialist Ina McGrath, the plaintiff "could lean to one side, but not forward."

A role as SNA in two senior classes in the school was ruled out as the older children were moving about to a considerable degree and Ms Daly "did not have the ability to propel her chair for such long distances."

Junior and middle classes were identified as those with "greater accessibility" from the plaintiff’s perspective, there being "the least safety risk for plaintiff and students."

What stands out in these proceedings is the fact that both the plaintiff and her charges find themselves in equally vulnerable positions and that clearly, the primary duty of care is to the pupils. The paradox is that in some classes, some of the pupils themselves being "strong adult males" posed a real threat to the plaintiff.

The requirements on an SNA working in such conditions are pretty varied and considerable. The McGrath report concluded that the appellant - Ms Daly - was capable of a "limited role" in the school. The report recommended against her working with children - with autism, for example - who "could act out physically."

The Labour Court held that it was for the School Board of Management to make its own assessment as to the "reasonable accommodation" required of it.

In its view, there was no evidence that the Board had considered this question nor that it had explored the question of obtaining public funding for the measures required.

Judge McMenamin was, in turn, critical of an aspect of the Labour Court ruling. "There was a considerable focus on decided case law, perhaps in preference to a more straightforward and precise process of applying the words of Section 16 of the Act." Concentrate on the facts and on practical solutions rather than on intellectual show boating, he may be suggesting.

The Court of Appeal took a very different approach, its President Judge Ryan criticising the Labour Court for its conclusion that "there should be a free standing obligation on an employer to evaluate all the available options. Failure of compliance will not, in itself, give rise to a right to compensation."

The Supreme Court had a further criticism of the manner in which the Labour Court reached its decision to make a €40,000 award to Ms Daly.

"How this sum was arrived at is unclear," Judge McMenamin noted. "Justice must be seen to be done. Part of that process must be that a deciding tribunal is seen to engage with the available evidence."

However, it is the gap between the views of the Supreme Court and those of Judges Ryan and Finlay Geoghegan of the Court of Appeal which stand out in sharpest relief.

Judge McMenamin noted Judge Ryan’s reference to a requirement that the employee be fully competent to carry out the tasks essential to the post. He disagrees.

Full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation [provided by the employer].

The duty requires that the person with a disability be given access to employment unless the measure would impose a disproportionate cost. A want of clarity regarding this duty might permit employers to rearrange matters so as to limit their obligation under the Act to re organise the way the work is done in order to accommodate the person with the disability.

Ms Daly’s long legal march towards vindication and a degree of compensation – a journey likely to end in the Labour Court – has resulted in a fascinating debate among some of our top judges and employment bodies.

One hopes that the resulting clarity will assist organisations to grapple with the challenges to their systems that arise when employees are left with reduced capacity as a result of accident or illness.

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