The Court of Appeal has allowed Nano Nagle School’s appeal against a Labour Court determination in favour of Marie Daly, a former special needs assistant who sought to return to work after a road traffic accident left her paraplegic and using a wheelchair.
In a judgment delivered on 31 January 2018, the court set aside the Labour Court’s determination. It held that the Labour Court had misapplied section 16 of the Employment Equality Act to the undisputed facts in an expert report. The court did not decide the school’s separate appeal ground concerning evidence given by occupational therapist Ina McGrath at the Labour Court hearing, saying it was unnecessary to do so.
Ms Daly had worked at the school in Killarney from 1998 until her accident in 2010. She wanted to return and believed she could work as an SNA or secretary. The school obtained occupational health and risk assessment advice. McGrath’s report said Daly could perform some SNA tasks, but could not assist with children’s physical care needs or respond safely to some behaviours. It recommended that she might work as a “floating SNA” with children needing verbal or limited physical prompts, and not with children who act out physically.
The Labour Court found that the school had not adequately considered reorganising work and redistributing tasks among the SNAs to enable Daly to continue working. It ruled that the school breached its statutory duty and awarded compensation. The High Court upheld that determination.
The Court of Appeal disagreed. It said the school had considered the proposed floating role, but it would have been a new, supernumerary position with the physical elements of SNA work removed. The school’s funding body, the NCSE, refused funding for the position. The court also rejected criticism of the principal for not asking other SNAs to take on the physical tasks, and said the school could take account of the care and safety needs of pupils and staff.
The judgment said section 16 requires reasonable accommodation, including possible distribution of tasks, but does not require stripping away essential elements of a job or creating an entirely different position. It also rejected a freestanding legal duty to consult or evaluate every possible adjustment regardless of whether reasonable adjustments could objectively be made. The court concluded that Daly could not perform the essential tasks of an SNA in this school and that accommodation could not change that. It allowed the appeal and set aside the Labour Court determination; it did not order compensation or make a further employment order in the judgment provided.