Updates On The Status Of The Practical Operation Of The Law On Discrimination

In this hot topics article, we look at recent case law for lessons on how an employer can successfully defend a claim of discrimination where an employee has a legal disability. The Nano Nagle v Daly [2019] IESC 63 Supreme Court decision has crystallised reasonable accommodation and the duties of employers in complying with Section 16 of the Employment Equality Acts 1998-2015 (EEAs). While this case is now waiting for a full rehearing before the Labour Court, the Supreme Court decision offers employers useful guidance and welcome clarity. For example, it is now clear that an employer does not have to create a new role for a (legally) disabled employee. It is also clear that an employer's adherence to and consideration of the various elements of the reasonable accommodation test is a high bar to meet and is indisputably onerous.

In this article we provide an up-to-date analysis of the steps an employer can take to successfully defend a Workplace Relations Commission (WRC) case. We also provide an overview of key statutory provisions and case law in this area and we look at the emerging UK case law on vegetarianism/veganism as one to watch.

Nano Nagle

By way of brief reminder on what the Supreme Court judgment in the Nano Nagle case means for employers generally when it comes to providing reasonable accommodation under Section 16 of the EEAs, employers should:

Distinguish between essential and non-essential duties; Consider a redistribution of duties to allow employees with a disability to focus on the tasks they are capable of performing; Establish the measures that could be taken to reasonably accommodate the employee in carrying out their role this may include adaptation of the employer's premises and equipment, patterns of working time, redistribution of tasks, a change to work patterns or the provision of training or integration resources; Take appropriate multidisciplinary medical advice; Evaluate whether such measures (particularly the redistribution of tasks) would impose a disproportionate burden on the employer - factors that can be taken into account include the financial and other costs entailed, the scale and financial resources of the employer's business and the mandatory obligation of inquiring into obtaining public funding or other assistance; Consult with employees, unions and employee representation throughout the process; and Record all steps taken and insofar as is practicable, share efforts made by an employer to...