In today’s 12 Days of Christmas bulletin, we look at some decisions from earlier this year about the duty to make reasonable accommodation for employees with a disability.

Disability discrimination and making reasonable accommodation

Nano Nagle v Marie Daly IESC 63

The Supreme Court has clarified the extent of the employer’s duty, under the Equality Acts 1998 to 2015, to alter a job to accommodate an employee’s disability. 

In brief, the case concerned a school special needs assistant who was paralysed in an accident. The dispute was about the degree to which the school board should have modified the complainant’s role to facilitate her return to work.  The Supreme Court considered the meaning of the obligation to make “reasonable accommodations”.

What follows is a short summary of guidance, given by MacMenamin J. for the Supreme Court, on making “reasonable accommodations”:

1. An employer is required to take appropriate measures, where needed in a given case, to enable a disabled person to have access to and participate in employment. 
2. This requirement is limited by the principle that an employer is not obliged to implement a measure that would be disproportionately burdensome.
3. Satisfying the duty involves taking effective and practical measures to adapt an employer’s place of business, one example of which is changing the distribution of tasks. 
4. There is no reason in principle why appropriate measures could not include reallocating an employee’s duties (there is no material distinction between “tasks” and “duties”).
5. However, to change a role to the extent that, in reality, an entirely new job is sought will “almost inevitably” put a disproportionate burden on the employer.

The decision neatly sets out the principles that are to be applied by an employer in this situation; the measures that an employer must take in any given case will depend on the specific facts.

In practical terms, an employer will need to:

• Consult with a disabled employee to properly understand their impairment and to determine what accommodations should be made;
• Consider if appropriate whether the employee in question could be transferred to an existing vacancy if they can no longer perform their existing role; and
• Anticipate its wider employment law obligations in a situation where an employee cannot perform their role due to a disability.

Reasonable accommodation – lessons from the WRC

Earlier this year we commented on two decisions from the Workplace Relations Commission which highlight the need for an employer to:

1. Pro-actively consider what reasonable accommodations it could make to a post when interviewing a candidate with a disability. 
2. Involve an employee when working out how best to accommodate an impairment arising from a disability.

You can read the article in full by clicking here.

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