Special needs assistant who is paraplegic goes to Supreme Court over right to return to work

MArie Daly outside court today. Pic: Collins

A special needs assistant who is paraplegic following a road accident has urged the Supreme Court to overturn a decision that she cannot resume work at a special needs school.

Marie Daly’s case will be a “benchmark” concerning the right to work of persons with disabilities and the extent of the obligations of employers to facilitate that, Cliona Kimber SC, for the Irish Human Rights and Equality Commission (IRHEC), told the five-judge court.

The Commission is involved as an assistant to the court on legal issues and Ms Kimber made various submissions, including concerning the importance, as emphasised in the Irish Constitution and EU law, of the link between work and human dignity.

She urged the court to adopt a “social”, not a “medical”, model of disability and to see the workplace as somewhere to be adapted to the human person, not the other way around.

Ms Daly and Emily Logan, chief commissioner of the IRHEC, were in court today.

Having heard submissions from all sides, the five-judge court reserved judgment.

The appeal centres on the interpretation of Section 16 of the Employment Equality Act 1998, enacted to give effect to the 2000 EC Directive on equal treatment in employment and occupation.

Section 16 provides an individual does not have to be recruited, promoted or retained in a position if they will not, or cannot, undertake the duties attached to that position.

It also provides for employers to make reasonable accommodation to enable disabled persons to access employment unless that would impose a "disproportionate” burden on the employer.

Ms Daly was employed from 1998 by the Nano Nagle School in Listowel, Co Kerry, which provides services for 77 children with physical intellectual and behavioural challenges.

In 2010, she suffered serious injuries in a road accident, leaving her confined to a wheelchair due to paraplegia.

When she sought in 2011 to return to work at the school, it had her assessed by an occupational physician and occupational therapist. It was concluded she was unable to perform seven of 16 identified duties of a SNA.

The therapist recommended she could act as "a floating SNA" but there was no such position at the school and it was refused funding for one. The occupational physician later advised she was unfit to return to work.

The Labour Court later awarded her €40,000 compensation after finding the school construed its duty under Section 16 too narrowly and was obliged to fully consider the redistribution of tasks among all the SNAs to relieve Ms Daly of those duties she was unable to perform.

The Court of Appeal later ruled the Labour Court's construction of Section 16 was not correct and held Section 16 did not require an employer to retain an individual who could not perform the essential functions of a position.

Ms Daly secured a further appeal to the Supreme Court.

Today, her counsel Oisin Quinn SC argued the Court of Appeal decision should be set aside for reasons including the school’s argument it could not reorganise arrangements so as to allow Ms Daly resume work had not been thoroughly tested.

If an employer “sets their face” against a thorough examination of reorganisation, that must be a breach of the duty to provide ”reasonable accommodation”, he argued.

The evidence established Ms Daly can work with moderately disabled children, he said. One-third of the school’s pupils are classified as having a moderate disability and she could thus work with them.

He also disputed that the 16 duties identified for a SNA are all essential.

Marguerite Bolger SC, for the school, argued the accommodation being sought by Ms Daly was not reasonable and would impose a disproportionate burden on the school as an employer.

An employer cannot be expected to accommodate a person who cannot carry out the duties of the particular position, she submitted.

Ms Daly is “undoubtedly” not fit to discharge nearly half of the duties of a SNA and cannot, for example, run after a child who is “acting out”, she said.

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