Nano Nagle School v Daly

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice John MacMenamin
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IESC 63
• Court: Supreme Court
• Docket Number: [S.C. No. 37 of 2018],[Appeal No. SAP IE 2018/37] Supreme Court appeal number: S:AP:IE:2018:000037 [2019] IESC 000 Court of Appeal record number: 67/2016 [2018] IECA 11 High Court record number: 2014 516MCA [2015] IEHC 785
• Date: 31 July 2019

[2019] IESC 63

An Chúirt Uachtarach

THE SUPREME COURT

MacMenamin J.

Charleton J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley Iseult J.

[Appeal No. SAP IE 2018/37]

Supreme Court appeal number: S:AP:IE:2018:000037

[2019] IESC 000

Court of Appeal record number: 67/2016

[2018] IECA 11

High Court record number: 2014 516MCA

[2015] IEHC 785

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT, 1998 – 2011

AN APPEAL PURSUANT TO S.90(1) AGAINST DETERMINATION EDA 1430 BY THE LABOUR COURT, DATED 12TH AUGUST, 2013

BETWEEN:

NANO NAGLE SCHOOL

RESPONDENT

V.

MARIE DALY

APPELLANT

AND

IRISH HUMAN RIGHTS & EQUALITY COMMISSION

AMICUS CURIAE

Employment – Unlawful discrimination – Statutory duty – Appellant seeking to resume her employment – Whether the respondent’s decision refusing the appellant permission to return to work constituted unlawful discrimination

Facts: The appellant, Ms Daly, began work as a special needs assistant in the respondent, Nano Nagle School in Killarney, in 1998. In July, 2010, she sustained very serious injuries in an accident whilst on holiday. As a result, she was paralysed from the waist down. Since then she has had to use a wheelchair. She undertook an extensive course of rehabilitation. By the beginning of 2011, she was anxious to resume her employment. The school initiated an assessment process for this purpose. Ultimately, the school board refused the appellant permission to return to work. Advised and assisted by her trade union, the appellant brought an application under s.83 of the Employment Equality Act 1998 - 2011 to the Equality Tribunal. She claimed that the school’s decision constituted unlawful discrimination under s.6, s.8, and s.16 of the Acts, and that the employer had failed to comply with its statutory duty under s.16(3) and (4) of the legislation, to provide “reasonable accommodation” or “appropriate measures”, to accommodate her disability, which would have allowed her to return to work. The claim was first heard by an Equality Officer appointed under the Act. His decision, dated the 3rd December, 2013, determined the appellant was no longer fully competent and available to undertake, and no longer fully capable of undertaking, the duties attached to the position. He held the school had a good defence on the basis of incapacity, that there was no discrimination, and the appellant was not entitled to any remedy under the Act. The appellant appealed to the Labour Court, which reversed the decision. It held there had been a failure to comply with s.16(3) of the Act, and held that, in making its decision on the question of reasonable accommodation, the school had failed to consult with the appellant, who was awarded €40,000 in compensation. The school appealed to the High Court on points of law. There, Noonan J upheld the decision of the Labour Court. The school then appealed to the Court of Appeal, which upheld the school’s appeal, and reversed the decision of the High Court in two judgments, delivered by Ryan P, and by Finlay Geoghegan J on the 31st January, 2018. The appellant then applied for leave to appeal to the Supreme Court, which application was granted in a determination dated the 6th July, 2018. In the leave application, the appellant submitted that the decision of the Court of Appeal introduced significant qualifications to the obligations on employers to consider the redistribution of tasks to facilitate persons with disabilities in the workplace.

Held by MacMenamin J that there were some issues yet be determined which could only be determined by the Labour Court itself; in this way, statutory compliance could be achieved. MacMenamin J held that the only appropriate order was to remit the matter for the Labour Court for further consideration in accordance with the totality of the evidence adduced, together with such further limited evidence as may be necessary, and the law. MacMenamin J held that the Supreme Court should not seek to pre-empt, or short-circuit, that process.

MacMenamin J held that the issues which the Labour Court must address were: (a) the process of consultation with the National Council for Special Education; and (b) the entirety of Ms McGrath’s evidence, and its legal consequences. MacMenamin J held that an ultimate legal question was the extent to which it could be said that, even with reasonable accommodation, the appellant could return to the position of a special needs assistant.

Appeal allowed.

Judgment of Mr. Justice John MacMenamin dated the 31st day of July, 2019

1 The appellant, Marie Daly, began work as a special needs assistant (‘SNA’) in the respondent school in the year 1998. She is also a qualified nurse. The Nano Nagle School in Killarney (‘the school’) caters for children on the autistic spectrum, and those with mild to profound disabilities. In July, 2010, Ms. Daly sustained very serious injuries in an accident whilst on holiday. As a result, she was paralysed from the waist down. Since then she has had to use a wheelchair. She undertook an extensive course of rehabilitation. By the beginning of 2011, she was anxious to resume her employment. The school, as her employer, initiated an assessment process for this purpose. The job of an SNA is a challenging one, and has a significant physical aspect. Ultimately, following a process described in this judgment, the school board refused the appellant permission to return to work.

The Equality Officer

2 Advised and assisted by her trade union, the appellant brought an application (DEC-E 2013-161) under s.83 the Employment Equality Act, 1998 - 2011 (‘the Act’), to the Equality Tribunal, now merged into the Workplace Relations Commission (See, now, Workplace Relations Act, 2015). She claimed that the school's decision constituted unlawful discrimination under s.6, s.8, and s.16 of the Acts, and that the employer had failed to comply with its statutory duty under s.16(3) and (4) of the legislation, to provide ‘ reasonable accommodation’ or ‘ appropriate measures’, to accommodate her disability, which would have allowed her to return to work. The claim was first heard by an Equality Officer appointed under the Act. His decision, dated the 3rd December, 2013, determined the appellant was no longer fully competent and available to undertake, and no longer fully capable of undertaking, the duties attached to the position. He concluded the school had given consideration to the provision of what are called under s.16 of the Act ‘ appropriate measures’ to enable the appellant to return to work, but that these measures gave rise to ‘ a cost other than a nominal cost’, and the school was entitled to rely on s.16(3) of the Act as a defence. It appears that, referring to nominal cost, the officer was under a misapprehension as to the applicable law; the nominal cost test had been removed by s.9 of the Equality Act, 2004; and replaced by amendment outlined later. This was not the sole basis of his decision, however, as he held the school had a good defence on the basis of incapacity, that there was no discrimination, and the appellant was not entitled to any remedy under the Act.

The Labour Court

3 The appellant appealed to the Labour Court, which reversed the decision. It held there had been a failure to comply with s.16(3) of the Act, and held that, in making its decision on the question of reasonable accommodation, the school had failed to consult with the appellant, who was awarded €40,000 in compensation.

The High Court and Court of Appeal

4 The school appealed to the High Court on points of law. There, Noonan J. upheld the decision of the Labour Court. The school then appealed to the Court of Appeal, (Ryan P., Finlay Geoghegan J.; Birmingham J. concurring in both judgments), which upheld the school's appeal, and reversed the decision of the High Court in two judgments, delivered by Ryan P., and by Finlay Geoghegan J. on the 31st January, 2018, (A:AP:IE:2016: 000067; [2018] IESC DET 103). The appellant then applied for leave to appeal to this Court, which application was granted in a determination dated the 6th July, 2018, [2018] IESC DET 103.

The Leave Determination

5 In the leave application, the appellant submitted that the decision of the Court of Appeal introduced significant qualifications to the obligations on employers to consider the redistribution of tasks to facilitate persons with disabilities in the workplace. The panel of this Court pointed out that the application appeared to raise the issue of a tension between the duties involved in a particular post, and the tasks which may be distributed or redistributed by way of reasonable accommodation.

6 The issues which arise are, undoubtedly, of significant importance, not only to the appellant, but in the broader field of disability law. The appeal has been elaborately argued on agreed facts, and counsel have helpfully provided extensive and welcome academic commentary, as well as the normal material required for compliance with the practice directions of this Court. Counsel for the Irish Human Rights & Equality Commission, as amicus curiae, also made helpful written and oral submissions. While the issues turn largely on the interpretation and application of s.16 of the Employment Equality Act, 1998 (as amended), other ancillary questions also arise from the Labour Court's determination.

This Appeal

The Act – General Background

7 A general overview of the legislation may be helpful as a starting point. The purpose of the 1998 Act is, inter alia, to promote equality between employed persons, and make further provision with respect to discrimination in, and connection with, employment. The Act outlaws discrimination in connection with work related activities on nine distinct grounds, including disability. Whether Ms. Daly, an employee with a disability can be ‘ reasonably accommodated’ with what are called ‘ appropriate measures’ is a core issue...