What are Appropriate Measures and What are My Obligations and Responsibilities as an Employer?

On the 31st January 2018, the Court of Appeal issued a groundbreaking decision regarding appropriate measures, overturning both the Labour Court and High Court determinations on this very point.  As an employer, you may find yourself in a situation where you need to understand what ‘appropriate measures’ are and what your responsibilities are under Section 16 of the Employment Equality Act 198 as amended. Let’s take a look… Previously, an employer would defer to the case of Humphries v Westwood Fitness Club [2004] E.L.R. 296 for guidance, where the Circuit Court stated:  “The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case.  At a minimum, however, an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision. In practical terms, this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.” Since that decision, the way in which section 16 has been interpreted by the Courts has evolved and the Courts have in the past placed a very onerous obligation on an employer in assessing appropriate measures, which is outlined in the case of Nano Nagle School v Daly. It appeared as though the requirement to consider the “burden” on the employer was being overlooked, as well as the fact that the employee may no longer be in a position to perform the tasks of the position for which they were hired. Nano Nagle School v Daly – The Background Daly worked as a Special Needs Assistant in a school where students had a range of moderate to severe medical conditions.  Daly had worked in the school for ten years when she was involved in a serious car accident, which left her permanently wheelchair bound due to paraplegia and unable to perform her duties for which she was engaged by the school. The school engaged two occupational health specialists to access Daly’s working conditions and investigate whether there were any accommodations that could reasonably be made for her.  Given the demanding nature of the work, there were no satisfactory accommodations to be made. Equality Tribunal Daly brought her case to the then Equality Tribunal, where the Equality Officer found that the school “has fully and properly assessed all of the medical evidence available and that upon that upon obtaining further medical advice that evidence is conclusive.” [1] Labour Court & High Court The Labour Court overturned the Equality Officer’s decision, finding that “the school had failed to discharge its statutory duty to take adequate measures to provide her with reasonable accommodation so as to allow her to continue in employment.” [2] The matter was further appealed to the High Court, who upheld the Labour Court findings.  Undeterred, the school pursued an appeal to the Court of Appeal. The Court of Appeal The Court of Appeal asked two questions when analysing the case:

1. Did the Labour Court apply the law correctly?
2. Was the court’s view of the interpretation of the section correct?

The Court noted that “Ms Daly is a committed worker and her record before the accident was exemplary.  However, enthusiasm is not enough… The section (Section 16) requires full competence as to tasks that are the essence of the position.” The Court agreed with the Equality Officers findings, setting aside the Labour Court determination. A more recent Labour Court decision: In a recent case appealed to the Labour Court, the employee alleged that he had been discriminated against on account of a disability. It was further alleged that the employer had failed to reasonably accommodate his return to work, and as a result, he was dismissed from his employment in a discriminatory manner. The employee was employed as a Warehouse Operative, which involved lifting large, heavy products and operating a forklift. The employee alleged that he’d suffered a back injury for which he was receiving treatment.  The employee was absent from work for a long period of time. When the employee was initially deemed fit to return to work, he was only fit to return to “light duties” which had not been defined by a medical professional.  It was during this time that the employer tried to engage with the employee regarding his health and wellbeing, but information was not forthcoming. The employee attended meetings with his employer, and was asked on numerous occasions for permission to seek clarification from his doctor as to what “light duties” meant with a view to accommodating the employee. The employer was also receiving conflicting medical certificates regarding whether the employee was indeed fit to return to work. In January 2014, the employer was left with little option but to dismiss the employee on the grounds of ill health, and was he given notice as per his contract of employment. The employee lodged a case with the Equality Tribunal where the Equality Officer noted that “the Respondent went to considerable lengths to try to establish the medical situation.  This was supported by considerable documentary evidence…There was no mitigating evidence presented by the Complainant to explain the lack of cooperation in the medical enquires.  I was satisfied that the Complainant understood that his employment was in jeopardy…” [3] The Labour Court on appeal upheld the Equality Officers findings stating as follows: “The unavoidable conclusion to be drawn from the Complainant’s own submission to the Court is that he was and remained as of the date of his dismissal, unfit to perform the core duties of the job for which he was employed…the Respondent was not under any obligation to provide the Complainant with an alternative job in another department or to remove the core duties of the job for which he had been employed such as to substantially alter the character of that job. The correspondence opened to the Court amply demonstrate the Respondent’s bona fide efforts to engage with the Complainant…and where possible, reasonable accommodation for his disability, as required under the Act. “ [4] Conclusion It’s important for employers to do all they can to facilitate an employee’s return to work, following a lengthy period of absence as outlined above. An employer has a responsibility to the employee to ensure that they are fully aware of the employee’s condition and have made genuine efforts to accommodate their return to work.  However, as the case law prescribes, an employer does not have to leave a position open for an employee who is unable to perform the essential functions of the role, and who refuses to participate in the consultation process. If you have any questions regarding appropriate measures, please don’t hesitate to contact our 24 Hour Advice Service on 0818 923 923 where an advisor will be happy to help [1] DEC-E2013-168 The Equality Tribunal Employment Equality Acts Marie Daly v Nano Nagle School [2] Nano Nagle School v Daly [2018] IECA 11 [3] DEC-2016-020 An Employee v A Food Services Company [4] EDA1815 Excellence Limited and Adam Herzyk