New Appeal: What are an employer’s obligations under s 16 of the Employment Equality Act 1998?

In Nano Nagle School v Daly, the Supreme Court granted Daly leave to appeal on the correct interpretation of s 16 of the Employment Equality Act 1998, which implemented the provisions of Council Directive 2000/78/EC.

 

Background

Daly was a special needs assistant (SNA) in the School, which provides for the needs of children with profound disabilities. In 2010 she suffered injuries which led to her confinement to a wheelchair. In 2011 she sought to return to work. An occupational therapist determined that there are 16 main duties required of an SNA, that Daly would be unable to perform seven of those, but that she would be able to perform nine of those duties with some adaptations to the facilities.

 

The relevant sections of the 1998 Act are outlined in the determination:

Under s.16(3)(b) an employer is under an obligation to take appropriate measures where needed in particular case to enable a person who has a disability to participate in employment unless the measures would impose a disproportionate burden on the employer. However s.16(1) provides that nothing in the Act is to be construed as “requiring any person to……. retain an individual in the position….. if the individual is not (or as the case may be is no longer) fully competent and available to undertake and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be performed”. The next step is that under s.16(3)(a) a person with a disability is fully competent and capable of undertaking any duties is appropriate measures may be provided by the person’s employer. Finally , for these purposes s 16(4) (a) provides that “appropriate measures” in relation to a person with a disability means effective and practical measures to adapt a place of business to the disability concerned which under s16(4) (b) may include “distribution of tasks”.

 

The School concluded that Daly was unfit to return to work. Daly made a complaint to the Equality Tribunal. The Equality Officer decided that there was no discrimination. The Labour Court overturned that decision on grounds that the school failed to give adequate consideration to all the possible options, such as redistributing the tasks Daly was unable to perform among other SNAs. The High Court held that there was no error in law in that decision. However the Court of Appeal allowed the School’s appeal on grounds that, as the School was not required to redistribute tasks it could not have been obliged to consider that option. Daly applied to the Supreme Court for leave to appeal.

 

Supreme Court

The Court determined that given that there were such divergence in the interpretation of an important provision which derived from a directive of EU law, the case met the constitutional threshold for leave to appeal on whether the Court of Appeal erred in its interpretation of s 16 of the 1998 Act.

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