Yet despite the moral case for the legislation being acknowledged and even embraced, challenges remain in its application. These are most evident in the context of achieving reasonable accommodation as sometimes required when facilitating an employee with a disability. The recent Nano Nagle Nano Nagle v Marie Daly  IECA 11
judgment resulted in a narrower requirement of employers to consult with employees when addressing the issue of reasonable accommodation than had previously been considered to apply. In the judgment from the Court of Appeal earlier this year, it was held that section 16
“falls short of obliging the school to remove from the existing position of a SNA those main duties which Ms Daly is regrettably no longer capable and competent to undertake and redistribute them to others or, in effect create a new position in the school to which Ms Daly may return.”
The Court then held that it follows that if the school is not under an obligation to do so it cannot be under an obligation to consider doing so. This rationale sits uneasily with previous case law, most notably the view in the case of Humphreys Humphreys v Westwood Fitness Club  ELR where the Labour Court held that, at a minimum, an employer should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
The Court of Appeal decision in Nano Nagle is being appealed to the Supreme Court and employers await the outcome to establish with greater certainty the steps required when considering reasonable accommodation in such a way as to comply with the legislation.
The questions posed by the evolving case law in this area is but one of the challenges associated with compliance with the Employment Equality legislation. Managing the issue of retirement age, gender pay and other matters which require a balancing of employer and employee interests have yielded similarly complex questions.
At the last of our 2018 Employment Law Series on the 13th of December in Croke Park, Ibec solicitors will examine the implications of these recent decisions for employers, as well as conducting a review of recent case law on sexual harassment and a detailed analysis of developments in the law on retirement age. Book early to avoid disappointment.
Tuesday, 27 November 2018