The Supreme Court has agreed to hear an appeal by a special needs assistant who was told, due to serious injuries suffered by her in a road accident, she could not resume her work at a special needs school.
The appeal by Marie Daly raises important issues concerning the obligations of employers towards disabled employees.
A three-judge Supreme Court, in a written determination published this week, said decisions in her case to date showed a "significant divergence of approach and outcome" in respect of an "important and difficult" legal provision - Section 16 of the Employment Equality Act 1998, enacted to give effect to the 2000 EC Directive on equal treatment in employment and occupation.
In those circumstances, it would hear an appeal, the court said. A hearing date will be fixed later.
Ms Daly was employed from 1998 by the Nano Nagle School, 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 to return to work at the school in 2011, it had her assessed by an occupational physician and occupational therapist. It was concluded, of 16 identified duties of an SNA, she was unable to perform seven.
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.
After the Equality Tribunal rejected her complaint the school failed to provide reasonable accommodation for her disability so she could continue in employment, she successfully appealed to the Labour Court which awarded her €40,000 compensation.
The Labour Court decision centred on interpretation of Section 16 of the 1998 Act which 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 take appropriate measures to enable disabled persons to access employment unless the measures would impose a "disproportionate burden" on the employer.
The Labour Court held the school construed its duty under Section 16 too narrowly and was obliged to fully consider the redistribution of tasks among all the SNAs so as to relieve Ms Daly of those duties she was unable to perform.
After the High Court upheld the Labour Court decision, the school successfully appealed to the Court of Appeal which ruled the Labour Court's construction of Section 16 was not correct.
In his COA judgment, Mr Justice Sean Ryan said the Labour Court had not correctly applied the law to the undisputed facts. The "central reality" was Ms Daly, a remarkable person and much admired SNA, is unable to perform the essential tasks of an SNA in this school "and no accommodations put in place by the employer can change that, unfortunately".
The school had said SNAs had to work in pairs and the only option for Ms Daly to stay in employment was to get funding for a floating SNA but it had been told SNAs were provided for benefit of pupils, not staff, and a floating SNA could not be sanctioned.
The Labour Court erred in focussing on the position of Ms Daly to the exclusion of the other legitimate interests the school had to accommodate, particularly the children whose safety was a major concern, he held. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting with the employee, he said.
In her concurring judgment, Ms Justice Mary Finlay Geoghegan said Section 16 did not require an employer to retain an individual who could not perform the essential functions of a position.