The Supreme Court’s recent decision in the Nano Nagle case:
Duties of an employer
Section 16 of the Employment Equality Acts requires an employer to take appropriate measures to facilitate persons with disabilities in accessing and participating in employment unless those measures would impose a disproportionate burden on the employer.
The Act provides non-exhaustive examples of “appropriate measures” which include the adaptation of premises and equipment, patterns of working time, the distribution of tasks or the provision of training. In determining whether the relevant measures would impose a burden, the Act provides that account should be taken of the cost involved, the resources of the employer and the possibility of obtaining public funding or assistance.
Following the normal process from WRC to Labour Court the case was listed before the Appeal Court, who seemed to suggest that, in assessing whether an employee was capable of performing their role with reasonable accommodation, it was not necessary for an employer to consult with the employee. This marked a major departure from the position outlined in the case of Humphries v. Westwood. In Humphries, the Circuit Court found that an inquiry relating to an employee’s capacity could only be regarded as adequate if the employee concerned was allowed a full opportunity to participate at each level.
The Appeal Court considered that the employer has a statutory duty to reasonably accommodate the employee such that there was no justification for the rule requiring employee participation in the process.
However, the Supreme Court did not go so far as to hold that there is a mandatory duty to consult with employees in each and every case, it did note that “in this State … our courts have always attached importance to fair procedures where employment is at stake” before noting that “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”.