An Chúirt Uachtarach
The Supreme Court
Supreme Court appeal number: S:AP:IE:2018:000037
 IESC 000
Court of Appeal record number: 67/2016
 IECA 11
High Court record number: 2014 516MCA
 IEHC 785
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Nano Nagle School
Judgment of Mr Justice Peter Charleton delivered on Wednesday July 31st 2019
1. The purpose of this judgment is to indicate the reasons for partly assenting in the analysis of MacMenamin J but to also dissent as to the result proposed.
2. Having suffered a dreadful accident in July 2010, the applicant Marie Daly’s job in Nano Nagle School in Tralee, County Kerry, was held open for her. She is a qualified nurse and had worked there a highly valued special needs assistant in a school which educates children with mild, moderate and severe disabilities. These include many children who have physical handicaps. After a long period of treatment and rehabilitation for a severed spine, and now using a wheelchair, the applicant sought to return to work. There was a serious engagement by the school in that process. To the regret of everyone, the decision was made that the nature of the work could not suit the applicant.
3. The Employment Equality Act 1998 has been much amended; including by the Equal Status Acts 2000 and 2004, the Equality Act 2004, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the Civil Law (Miscellaneous Provisions) Act 2011, the Education and Training Boards Act 2013, the Equality (Miscellaneous Provisions) Act 2015 and the Workplace Relations Act 2015. Central to the changes in the legislation is the drive by society to ensure that persons of varying ethnicity, language, religion, and orientation do not suffer from exclusion but are treated, as much as any majority, as valued members of the workforce and of society. This is part of an international and European drive to declare the value which is inherent in the dignity of all people and to combat discriminatory conduct. In this regard, the United Nations Convention on the Rights of Persons with Disabilities, ratified by both the State and the European Union, is part of the necessary backdrop to this appeal. Article 27 of the Convention outlines the rights of persons with disabilities at work, which encompasses “the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.” State parties to the Convention have an obligation under this Article to “safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment” through measures such as reasonable accommodation and prohibition of discrimination. Directly relevant are Ireland’s obligations under European Law as expressed in EU Council Directive 2000/78/EC of 27 November 2000, the Framework Equality Directive. The Directive prohibits employment discrimination on the grounds of religion or belief, disability, age or sexual orientation. It states in Recital 16 that the provision of measures accommodating “the needs of disabled people at the workplace play an important role in combating” such discrimination. The 1998 Act must be interpreted in the light of the Directive. In turn, the Directive requires to be seen in the light of the international obligations entered into by the European Union, the Convention. Matters of interpretation cannot, however, change the clear wording of a statutory obligation. This is a line which the European Court of Justice declared cannot be crossed. In the joined cases of Pfeiffer and Others v. Deutsches Rotes Kreuz  E.C.R. I-08835 (C-397/01 to C-403/01), the following observations were made by the Court:
111. It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective.
112. That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC, presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C-334/92 Wagner Miret  ECR I-6911, paragraph 20).
113. Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC (see to that effect, inter alia, the judgments cited above in Von Colson and Kamann, paragraph 26; Marleasing , paragraph 8, and Faccini Dori , paragraph 26; see also Case C-63/97 BMW  ECR I-905, paragraph 22; Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores  ECR I-4941, paragraph 30; and Case C-408/01 Adidas-Salomon and Adidas Benelux  ECR I-2537, paragraph 21).
4. Section 2 of the 1998 Act defines disability as meaning:
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
5. Discrimination should not occur. That happens when persons with disabilities are excluded from work of which they are capable. Section 35 goes so far as to enable a person who cannot do a full shift of work, or a full week, to be engaged to do less than a person without a disability and for remuneration to be adjusted. Under section 8 of the Act, discrimination is prohibited as regards “access to employment”, “conditions of employment”, “training or experience for employment”, “promotion or re-grading”, or “classification of” employment posts. Section 6 of the Act provides that where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2), “discrimination occurs”. Declared as unacceptable to society are gender discrimination, civil status discrimination, family status discrimination, sexual orientation discrimination, religious discrimination, age discrimination for those over 18, disability discrimination, race discrimination, Irish Traveller Community discrimination, and discrimination because of pregnancy. Work of equal value must, under section 7, be generally remunerated in an equal way. Advertisements containing discriminatory provisions are prohibited by section 10 of the Act. Where contracts, and here the provision particularly concerns contracts related to employment, contain discriminatory terms, these are “null and void” under section 9 of the Act. The provisions are equally applicable to men and women under section 18 and both are entitled to equal remuneration under sections 19 and 29.
6. The legislation also provides at section 16 that the imperative of the legislation is not to require “any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position” where that individual cannot do the work, is not competent or qualified for the work, or will not do the work. That is specifically put in this way in section 16(1) so that no employer, or prospective employer, or employment agency, is required to offer employment to, or continue in employment, or to search for employment for any individual who:
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
7. This is not different to Recital 17 of the Directive which provides:
8. Both in the High Court and in the Court of Appeal in this case, and on this appeal, there was considerable discussion as to whether the anti-discrimination provisions in relation to disability in section 16 of the 1998 Act ought to be construed on the basis that section 16(1) is somehow dominant over the provision requiring reasonable accommodation for persons with disabilities in section 16(3). All legislation is to be construed in accordance with an appropriate regard to other relevant provisions which provide the context for a proper interpretation. Sections 6 and 16 fit together to provide that while it is prohibited that “a person is treated less favourably than another person is, has been or would be treated in a comparable situation” because of grounds ranging from disability to race, that does not mean that an employer is required to engage those who are not willing to do the work or are not “fully capable” of performing the work. Both are sides of the same coin. They go together. What is thus, for example, specifically provided for is that those seeking a person to play as principal flute in a symphony orchestra do not have to engage someone who plays only the piano but expresses a willingness to start learning the other instrument. Thus, whether the person is 40 years old or 80 years old, gay or straight, an Irish-speaking individual descended from Brian Boru or a recently arrived Russian, a Christian or a Jewish applicant, any can and should be chosen once selection for employment is on the basis of competence and willingness. The general and imperative provisions of the legislation are, however, so wide that in section 16(5) the legislature has felt it necessary to declare that nothing in the Act is to be taken as “requiring an employer to recruit, retain in employment or promote an individual” where that “employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.” To bring home that qualification, section 16(5) provides that this saver is particularly applicable “where the employment concerned involves access to minors or to other persons who are vulnerable.” Thus, while an employer cannot discriminate, an employer is entitled and expected to choose people to fill posts on the basis of ability. A person can be able but have criminal propensities which may, and should on any commonsense basis, disqualify him or her.
This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
9. The thrust of the legislation is thus to outlaw in the workplace only the kind of discrimination based on bigotry, prejudice or racism. To discern that a particular individual is not committed to the work, or that that person lacks the competence for the work or the capability to tackle the work, is not to deny someone employment through unlawful discrimination. That is not to deny the legislation its nuances; but merely to attempt a summary. This legislation, after all, is directed to employers and to employment agencies. It is not directed to accountants or tax specialists or lawyers. Occluding the legislation with a legal mist of fine distinctions as between various terms for work or tasks and asking such questions as to core competencies and attempting a perfect definition of any particular form of employment in distinction from the commonsense and honest appraisal that the legislation clearly requires is to do a disservice to the human rights of disabled individuals and the thrust of the Convention and of the Directive. Hence, it is difficult to see distinctions in relation to any discernible differences between duties, functions and tasks, or core duties and responsibilities as helpful. Nor is it particularly useful to see disability as medical in nature. A person with a disability remains a person, an individual with human dignity who is required to be treated as such. Then the issue is as to how the workplace treats that person. The ideals in the Convention are translated into practical measures through the Directive and through the Act.
10. In reality, every job is different. A person who has pursued an avocation in police work could usefully serve in a vast range of functions in such a huge and multi-faceted sphere of employment. Hence, whether on the beat, or acting as a crime analyst or detective or in administration, a police officer is part of a vast organisation where the specific skills of police work may be more or less needed and where people may be redeployed to tasks which require discretion to be exercised but which back up those at the front line. In some cases, an employer may be able to redeploy people from a very physical task to an area in administration. Thus, in Chief Constable of South Yorkshire Police v Jelic  IRLR 744, a police officer was diagnosed with chronic anxiety syndrome. The English Employment Appeals Tribunal found that it would have been a reasonable adjustment to swap the jobs being undertaken by the claimant and another policeman, or to offer him re-employment in a civilian job within the police force which was being advertised at the relevant time. A person who lays bricks is different, because qualities such as a keen eye and physical strength backed by experience are there demanded. If someone is employed to build, losing those attributes through an accident means the loss of the trade. English authorities including Archibald v Fife Council  UKHL 32 and Jelic suggest that redeployment is part of the duties of an employer in England and Wales under the relevant legislation in force at the time they were handed down: section 6 of the Disability Discrimination Act 1995 referred to the employer’s duty to make adjustments including “transferring [a person] to fill an existing vacancy”. This legislation has since been replaced by the Equality Act 2010. Sections 20, 21 and 22 thereof impose a duty to make reasonable adjustments for disabled persons, but do not reference redeployment. The requirement to redeploy does not arise under the 1998 Act in this jurisdiction. Thus such cases as cited above from the England and Wales jurisdiction would not carry the same imperative here. But even under that legislative model, not wishing to work directly with prisoners, as in Irish Prison Service v A Prison Officer  ILCR Determination No EDA1837, or as in British Gas Services Ltd v McCaull  IRLR 60, the necessity to have more than one operative suggests a common sense interpretation of the legislation, and not one suffused with legal nuance.
11. Hence, properly the focus is on the work. Again, this is not to be reduced to legal disputations. A job can best be seen by looking at what is involved on the ground. Seeing that job carried out through observation, or experience of that employment, can define the nature of a post much better than any contract of employment or any paper exercise. That was the approach in this case and that approach is right. This is a practical exercise.
12. Leeway to a reasonable degree is to be afforded to disabled persons in order to enable them to do a job. As mandated by section 16(3) of the 1998 Act, those with a disability are “fully competent to undertake and fully capable of undertaking” a job on “reasonable accommodation … being provided by the person's employer.” Examples may assist. A person putting together exhaust manifests in a car factory requires to be both highly mobile and very strong, since the items are both heavy and cumbersome, as well as skilful in welding. A physical incapacity coming about while holidaying during employment may mean inability to do the job. On the other hand, a person sitting at a work bench and assembling ignition systems for a car may just as easily do that job from a wheelchair. That person’s place of work or access to a workbench may need sensible adjustment. All these assessments are fact-based and legal analysis is not the object of the legislation, the Directive or the Convention. Returning to an earlier example: the principal flute in the symphony orchestra becomes disabled through an accident and is in a wheelchair. She is still a brilliant flautist with a golden tone but, to get on stage, she needs a ramp. To go on tour, a hoist or other measures are needed to get her on the bus. To be fully comfortable, a disabled toilet needs to have easy access to the ladies dressing room in the rehearsal venue or concert hall. These are what the legislation refers to as appropriate measures. And the Act requires that every “employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability” to get to their place of work, to “to participate or advance in employment” or to obtain “training”. Those steps must be taken “unless the measures would impose a disproportionate burden on the employer.” What is proportionate or disproportionate descends into cost analysis based on “the financial and other costs entailed”, the scale of the employer, the state of the employer’s financial health and “the possibility of obtaining public funding or other assistance.” Section 16(4) amounts to a reiteration in stating that what needs to be done, if it can reasonably be done, is to take “effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned”. That can include “the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources”. Recital 20 of the Directive is not contradictory of this analysis:
Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
13. But, it is always a question of what can be done and whether it will really help that person who has a disability, or who has developed a disability while in the course of employment, to do their job. To go back to the example of the orchestral musician, if the disability is such as to destroy memory or concentration or ability to play at the top level, then as a matter of humanity, the employer may consider if it is possible to reassign. That is not a legal obligation. If the ability to be, as the Act says, “fully competent”, with “reasonable accommodation” is not there, then there is no discrimination according to the legal definition if the person cannot do the work.
14. Any analysis should focus on what happens on the ground. It is not appropriate for any body charged with deciding employment matters to leave out large sections of a narrative given in good faith by an occupational therapist or doctor in order that a particular result may seem attractive. In that regard, the concerns expressed by MacMenamin J are worrying. The test in the legislation is of full competence when reasonable accommodation is made. That test requires a plain analysis of the facts.
15. The appeal in this case was from the Director General of the Workplace Relations Commission to the Labour Court. This reversed the finding of the former. That happened in circumstances of concern. The remedies available under section 83, following a hearing, of the 1998 Act are in practical terms those available already at first instance under section 82. Hence, section 82(1) provides:
Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:
(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;
(b) an order for equal remuneration from the date referred to in paragraph (a);
(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;
(d) an order for equal treatment in whatever respect is relevant to the case;
(e) an order that a person or persons specified in the order take a course of action which is so specified;
(f) an order for re-instatement or re-engagement, with or without an order for compensation.
16. In turn, there are limitations as to monetary amounts. Thus under section 82(4):
The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c ) or (1)(f ) shall be —
(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —
(i) 104 times the amount of that remuneration, determined on a weekly basis,
(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or
(iii) €40,000, or
(b) in any other case, €13,000.
17. Here, the award of the Labour Court was for €40,000. It was not that something specific be done or that the employment held open for the applicant in anticipation of a hoped-for recovery should recommence.
18. Under section 90 of the Act, upon a determination being made, either the Labour Court, or the parties, may “refer to the High Court on a point law” and the Labour Court may “if it thinks it appropriate, adjourn the appeal pending the outcome of the reference.” Here, the errors of fact made in effectively rewriting the occupational therapy report amount to an error of law.
19. On dismissal from employment for misconduct, a minimal form of fair procedures is required. Some contracts of employment may require more. Where ill-health is in issue then the principles laid out in Humphries v Westwood  15 ELR 296 and McKevitt v Dublin Bus  IEHC 78 apply. In Humphries, Dunne J noted the following in her analysis of section 16 of the 1998 Act:
20. In McKevitt, Ní Raifeartaigh J endorsed at paragraph 53 the decision of Lardner J in Bolger v Showerings  ELR 184, which held that where an employer wishes to dismiss an employee with poor health on grounds of incapacity, the onus is on them to show:
This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, 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.
21. The decision not to start the applicant in employment was not due to any misconduct on her part. Procedural rights are thus not engaged in the sense of enabling the right to answer a charge of discreditable conduct. Instead, it was due to the unfortunate occurrence of the disability which the school realised could not enable it to employ the applicant as a special needs assistant. Certainly, had the board of the school sat down with the applicant and discussed the reports in this case, it may be that no case would ever have been taken. But, what was done, in giving the applicant an opportunity to consult with a doctor and to engage with every aspect of the case on the ground as to the effect which her disability had on the highly responsible and physically demanding work of a special needs assistant sufficed as a procedure. The legislation does not demand, and nor should this Court impose, any further requirement such as one which demands some kind of procedure related to any scheme of accommodation that might be reached. It is for an employer to be open to the prospects for engagement and to consider what can in good faith be done.
i. That it was the incapacity that was the reason for the dismissal;
ii. The reason was substantial;
iii. The employee received fair notice that the question of his dismissal for incapacity was being considered; and
iv. The employee was afforded an opportunity of being heard.
22. On the papers before the court, there is nothing whereby the genuineness of either side could be doubted.
23. The order of the Court of Appeal, perfected on 21 February 2018, was to “set aside the said determination of the Labour Court” and that the “award of compensation be vacated”. That order should be upheld but on the narrow grounds herein explained.