Nano Nagle School v Daly

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Noonan
Judgment Date11 December 2015
Neutral Citation[2015] IEHC 785
Docket Number[2014 No. 516 MCA]
Date11 December 2015

[2015] IEHC 785

THE HIGH COURT

Noonan J.

[2014 No. 516 MCA]

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACTS 1998 TO 2011

ON THE APPLICATION OF NANO NAGLE SCHOOL

AN APPEAL PURSUANT TO SECTION 90 (1) AGAINST DETERMINATION EDA 1430 BY THE LABOUR COURT DATED THE 12TH OF AUGUST 2014

BETWEEN
NANO NAGLE SCHOOL
APPELLANT
AND
MARIE DALY
RESPONDENT

Employment – The Employment Equality Acts 1998 to 2011 – Dismissal from services – Medical fitness to work – Expert report – Council Directive 2000/78/EC – Reorganisation of job duties

Facts: Following the decision of the board dismissing the employment of the respondent on the basis that she was medically unfit to perform the duties of a special need assistant, and subsequent determination of the Labour Court awarding compensation to the respondent on appeal, the applicant had now filed an appeal against the decision of the Labour Court under s. 90 (1) of the Employment Equality Acts 1998 to 2011. The applicant contended that the job profile of the respondent could not be reorganised so as to suit her medical needs as it would be contrary to the assigned job duties of a special need assistant.

Mr. Justice Noonan dismissed the appeal of the applicant. The Court held that before setting aside the decision, the applicant must show that the decision making authority failed to consider the relevant evidence in support of its decision. The Court found that the Labour Court correctly assessed and weigh the evidence presented before it and found several inconsistencies. The Court held that the respondent should have been given an opportunity of hearing before the applicant went on to make a decision of her dismissal, the failure of which led to the non-compliance of the duty under s. 16 of the Employment Equality Acts 1998 to 2011.

JUDGMENT of Mr. Justice Noonan delivered the 11th day of December, 2015
Introduction
1

This matter comes before the court be way of appeal on a point of law pursuant to s. 90 (1) of the Employment Equality Acts 1998 (2011).

Background facts
2

The Appellant ('the school') is a special school for children with varying degrees of disability ranging in age from 4 to 19. There are currently approximately 77 children attending the school with 12 classes containing between 6 and 8 children. The school employs 12 teachers and 27 special needs assistants (SNA's) of which the Respondent ('Ms. Daly') was one. She commenced her employment as a SNA with the school in or about December, 1998.

3

In 2010, Ms. Daly was involved in a serious accident in which she suffered spinal injuries which have left her paralysed from the waist down and wheelchair bound. After the accident, Ms. Daly was admitted to the National Rehabilitation Hospital in Dun Laoghaire for a period of some five months. While there, she was assessed by a senior occupational therapist, Ms. Fiona Ryan, who concluded in a report in late 2010, that Ms. Daly could return to work on a phased basis. Ms. Daly was discharged from the NRH on the 19th of December, 2010, and in January, 2011, she sought to return to work at the school. She was advised by the school that she would have to be assessed by an occupational health expert.

4

Accordingly, on the 23rd of February, 2011, Ms. Daly attended with Dr. David Madden, an occupational health physician, of the Medmark practice. She furnished Dr. Madden with a copy of the report of Ms. Ryan on that occasion.

5

In a report of the 1st of March, 2011, Dr. Madden considered that Ms. Daly was fit to return to many of the duties of a SNA but there were some she could not undertake. He recommended that a risk assessment be carried out and that the school should implement it 'to ensure her safe return to work.' He went on to say 'I am happy to support her return to work once a risk assessment has been completed.'

6

In or about mid March, 2011, a risk assessment was carried out by a group called Southern Safety who recommended that Ms. Daly's return to work be accommodated by implementing a number of measures including rearranging her work practices so her role would be less challenging. The report further advised that Ms. Daly be consulted on all matters relative to her reintegration in the workplace.

7

Dr. Madden assessed Ms. Daly for a second time on the 15th of August, 2011, with the benefit of the Southern Safety report. He reiterated his earlier opinion and expressed the view that the risk assessment report was inadequate and the school should obtain another report from a suitable individual such as an occupational therapist. Ms. Ina McGrath was identified as a suitable expert occupational therapist to carry out the assessment. On the 2nd of September, 2011, Ms. McGrath carried out a half day assessment of the school and then she subsequently attended on the 9th of September, 2011, at the school where she carried out a full day assessment of Ms. Daly when she was at work. On the 29th of September, 2011, Ms. McGrath completed her report and presented it to the school. Prior to that, Ms. Daly had not been given a draft of the report in advance or invited to make any comments on it.

8

In the report, Ms. McGrath identified 16 categories of duties required of SNA's working in the school. She considered that Ms. Daly was able to carry out the duties in 9 of the categories either wholly or partly but not in the remaining 7. She concluded her report with the recommendation that Ms. Daly could act as a floating SNA and could perform SNA duties with children who need verbal or physical prompts. She recommended that Ms. Daly should not work with children who act out physically. On the 26th of October, 2011, a meeting of the board of management of the school took place when Ms. Daly's case was discussed and Ms. McGrath's report was considered. It was felt that the issues raised in the report were of great concern to the board and as a result, it was agreed to request Medmark to review the situation having regard to Ms. McGrath's report. This decision was reflected in a subsequent letter of the 28th of October, 2011, from the board to Ms. Daly.

9

It would appear that on the 20th of November, 2011, a telephone conversation took place between Dr. Madden and the school principle, Ms. Murphy. In that regard, the Labour Court in its determination noted the following evidence of Ms. Murphy (at page 9):

'In relation to [Ms. Daly's] evidence to the effect that she had been told by Dr. [Madden] that the [school] was not in a position to accommodate her disability, the witness accepted that she had a discussion with Dr. [Madden] on this matter. While she could not recall the verbatim content of their conversation the witness believed that she had told Dr. [Madden] that providing the type of accommodation required by [Ms. Daly] would be very difficult. Ms. [Murphy] did not accept that she had told the doctor that the [school] would not provide [Ms. Daly] with accommodation.'

10

The Labour Court further noted in relation to Ms. Murphy's evidence (at page 10):

'In response to questions from the court the witness agreed that she had spoken to Dr. [Madden] in relation to the feasibility of relieving [Ms. Daly] from some duties before he finalised his report. She told Dr. [Madden] that this would be difficult. Ms. [Murphy] accepted that she was of the opinion that [Ms. Daly] could only return to work if she able to perform all of the duties of an SNA. She expressed this opinion to Dr. [Madden] before the matter was discussed by the board of management.'

11

The Labour Court in its determination referred to Dr. Madden's account of this conversation with the school principal in the following terms (at page 13):

'An appointment was then made for him to see [Ms. Daly] for the third time. On the day before the appointment he reviewed [Ms. Daly's] file and he again read the second assessment report. He telephoned the school principal and enquired as to the degree of accommodation that could be provided to [Ms. Daly]. Dr. [Madden's] recollection was that Ms. [Murphy] told him that there were a significant number of issues around the proposals contained in the risk assessment and that the school could not provide the level of accommodation needed to facilitate [Ms. Daly's] return. Dr. [Madden] understood from this conversation that [Ms. Daly] could only return to work if she could perform the work of an SNA in its entirety.

Dr. [Madden] was satisfied that [Ms. Daly's] condition was such that she could not perform the role of an SNA in its entirety. In these circumstances he felt obliged to conclude that [Ms. Daly] was medically unfit to return to work.'

12

Dr. Madden then carried out his third and final assessment on Ms. Daly involving his report of the 21st of November, 2011. He referred to the report of Ms. McGrath and said:

'The report suggests that she may be suitable for the position of floating SNA. I note no such position exists. I reviewed the risk assessment and acknowledge that there are many tasks that Ms. Daly is not fit to participate in. I understand from discussing with her school, the level of accommodation required is not possible to meet to ensuring the safety of all those involved. I acknowledge the number of roles that Ms. Daly would need accommodation would be significant.

Conclusion:

Ms. Daly is in satisfactory health and fit for some work. I acknowledge she has a medical issue that renders her unsuitable to perform many of the roles critical of a special needs assistant. I note that the level of accommodation is significant and her employer is not in a position to facilitate such a level of accommodation in the workplace.

I feel Ms. Daly is not medically fit for the position of special needs assistant. I feel Ms. Daly's medical condition is genuine and permanent. I feel she is likely to remain unfit for the position of SNA permanently.'

13

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