Section 16 of the Employment Equality Acts requires an employer to do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities. However, an employer is not required to retain an individual in a position if that individual is not fully competent and available to undertake the duties attached to that position.
The recent High Court case of Nano Nagle School v Marie Daly  IEHC 785 examined the scope of this statutory duty of reasonable accommodation on an employer. Ms Daly, a special needs assistant (SNA), had an accident resulting in her being paralysed from the waist down. She wished to return to work and a number of occupational therapist reports were obtained. Ultimately, the school determined that it could not accommodate her return to work on the basis that she was medically unfit to undertake the entirety of the duties associated with her role as an SNA.
The High Court noted that the definition of appropriate measures includes the adaptation of both patterns of working time and distribution of tasks. Accordingly, the adaptation of the distribution of tasks must also, where appropriate, include the elimination of tasks since otherwise the section would fail to achieve the objective for which the legislation was enacted. On this basis, the High Court found that the school had failed to even consider a redistribution of Ms Daly's tasks as an SNA, rendering the school in breach of section 16 of the Employment Equality Acts. The case is a useful clarification on the scope of the duty to reasonably accommodate.
Token gestures not acceptable
A case from the Equality Tribunal (now the Workplace Relations Commission (WRC)) also reiterates the need for employers to be proactive in relation to the concept of reasonably accommodating a disabled employee. A Medical Secretary v HSE West (DEC-E2013-083) highlights that token gestures will not be accepted by the Tribunal as reasonable accommodation. In that case, an award of €70,000 (which was just shy of the maximum two years' award) was directed by the Tribunal which shows that the Tribunal will make awards designed to have a punitive and deterrent effect.
Accordingly, a prudent employer should be mindful to take steps to actively explore and consider any and all potential alternatives that may amount to appropriate measures (unless those measures would impose a disproportionate burden on the employer) so as to reasonably accommodate an employee with a disability.