CURRENT LEGAL ARTICLES

Introduction

A request for reasonable accommodation places an employer at the intersection of two legitimate, and sometimes competing, interests: the operational and financial requirements of the business, and the statutory rights of an employee with a disability. The recurring analytical error is to treat the request as a binary question — can the accommodation be provided, yes or no — rather than as a structured legal assessment governed by a defined statutory test.

Section 16 of the Employment Equality Acts 1998–2015 imposes a positive obligation on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability to access employment, to participate or advance in employment, or to undergo training — subject to the qualification that such measures need not be provided where they would impose a disproportionate burden on the employer. The obligation is neither absolute nor discretionary: it is a qualified duty, and its content is determined by a fact-specific balancing exercise rather than by an employer’s unilateral assessment of convenience.

For employers, this matters most acutely where reasonable accommodation intersects with capability management, long-term absence, or dismissal. A failure to properly discharge the section 16 obligation — irrespective of the employer’s ultimate conclusion on the merits — is itself capable of founding a disability discrimination claim under the Employment Equality Acts.

I.  The Statutory Test: Section 16 of the Employment Equality Acts

The statutory obligation comprises two limbs, applied sequentially:

• First, whether an appropriate measure exists that would enable the employee to perform the role, participate in employment, or undergo training — assessed by reference to the employee’s actual functional limitations rather than by reference to their diagnosis in the abstract.
• Second, whether providing that measure would impose a disproportionate burden on the employer, having regard to the financial and other costs entailed, the scale and financial resources of the employer’s business, and the possibility of obtaining public funding or other assistance.

Section 16 does not require an employer to accept every accommodation an employee proposes, nor does it entitle an employee to insist upon a particular arrangement simply because it would be preferable from their perspective. Equally, a bare assertion by the employer that an accommodation “cannot be provided” is legally insufficient where no genuine assessment against the statutory test has been undertaken. The legislation requires a reasoned, evidence-based determination — not a conclusion in either direction reached by assumption.

II.  Establishing the Functional Impact of the Condition

An employer cannot properly apply the section 16 test without first establishing the functional — as distinct from diagnostic — implications of the employee’s condition. This does not require, and should not involve, an attempt by management to diagnose the employee. Where appropriate, the employer should obtain medical or occupational-health evidence addressing: the functional impact of the condition on the employee’s capacity to perform the role; whether the essential duties of the position can be performed, with or without accommodation; whether any limitation is temporary or permanent; and what adjustments, if any, might reasonably assist.

The scope of medical inquiry should be confined to what is relevant to the employment issue under consideration, and any medical information obtained should be handled with an appropriate degree of confidentiality, consistent with the employer’s data protection obligations.

III.  The Duty to Consult

Meaningful consultation with the employee is an integral, rather than incidental, feature of a lawful reasonable accommodation process. An employer should not proceed on the basis of assumptions as to what the employee can or cannot do; the employee is frequently best placed to identify both the practical difficulties they face and potential solutions. Consultation should address which aspects of the role are giving rise to difficulty, what accommodation the employee considers might assist, whether alternative arrangements are operationally viable, and whether further medical or occupational-health input is required. This process assumes particular significance in operationally structured sectors — manufacturing, hospitality, and retail among them — where staffing flexibility may be more constrained.

IV.  Nano Nagle School v Daly [2019] IESC 63

The Supreme Court’s decision in Nano Nagle School v Daly is the leading authority on the operation of section 16. The case concerned a Special Needs Assistant who, following an accident, became a wheelchair user. The Court considered in detail the employer’s statutory obligation to assess whether reasonable accommodation could enable the employee to perform the essential functions of her role.

The judgment establishes a critical analytical discipline for employers: it is not sufficient to reason from the proposition that “the employee cannot presently perform the role as previously constituted” directly to the conclusion that “the employee cannot perform the role.” The intervening step — a genuine assessment of whether appropriate measures could bridge that gap — is precisely what section 16 requires, and its omission is the defect most likely to expose an employer to liability. Nano Nagle stands, in effect, for the proposition that reasonable accommodation is a process of genuine inquiry, not a conclusion available by default.

V.  A Structured Employer Process

A legally defensible approach to a reasonable accommodation request will typically proceed through the following stages, each of which should be documented as it occurs.

● Identification of the issue: establishing precisely what difficulty the employee is experiencing and its effect on their work.
● Obtaining appropriate information: securing medical or occupational-health advice where necessary to understand functional capacity and possible adjustments.
● Consultation with the employee: affording a genuine opportunity to explain their circumstances and propose accommodations.
● Identification of possible adjustments: to duties, hours, equipment, or working practices.
● Identification of essential functions: determining which duties are fundamental to the role, as distinct from those that are merely customary.
● Assessment of practicality and cost: evaluating the operational, financial and organisational implications of the proposed measure.
● Consideration of alternatives: where the employee’s preferred accommodation is not viable, assessing whether another measure could achieve a comparable outcome.
● Documentation: recording the information considered, the discussions held, and the reasons for the decision reached.

The final stage is not a formality. Where a decision is subsequently challenged, the contemporaneous record of the process followed is frequently the single most significant factor in the employer’s defence.

VI.  The Disproportionate Burden Qualification

Section 16 does not require an employer to provide accommodation without regard to cost or operational consequence. The disproportionate burden qualification permits the employer to have regard to the financial cost of the measure, the resources and scale of the business, the operational impact, the availability of external funding or assistance, and the practical effectiveness of the proposed measure in addressing the difficulty identified.

An employer relying on this qualification should be able to substantiate, rather than merely assert, why the measure in question is disproportionate, and should be able to demonstrate that less burdensome alternatives were considered

and found inadequate. A conclusory statement that an accommodation is “too expensive,” advanced without supporting analysis, is unlikely to withstand scrutiny before the WRC.

VII.  The Limits of the Obligation: Essential Functions

Reasonable accommodation does not require an employer to redesign a role so as to remove its essential functions. The statutory question is whether appropriate measures could enable the employee to perform those essential functions — not whether the role itself can be restructured to accommodate the employee’s limitations regardless of its fundamental requirements.

The distinction between adjusting how a role is performed and removing a core requirement of the role is analytically significant and frequently contested. Where a proposed accommodation would, in substance, eliminate an essential function, an employer may have a legitimate basis for concluding that it is not a viable solution — but that conclusion should be the product of a genuine assessment, informed by the process outlined above, rather than an assumption reached without inquiry.

VIII.  Long-Term Sickness Absence

Reasonable accommodation assumes particular significance where an employee has been absent for an extended period on grounds connected to a disability or medical condition. While an employer’s concerns regarding business continuity, staffing costs and the sustainability of an extended absence are legitimate, the employer should be cautious about proceeding directly from prolonged absence to dismissal.

Before dismissal is considered, the employer should establish whether the employee has a disability within the meaning of the Employment Equality Acts, whether current medical information is available, whether the employee may be capable of returning to work, whether reasonable accommodation has been properly explored, whether alternative duties or arrangements might be viable, and whether the employee has been consulted throughout. Where dismissal is under active consideration in circumstances involving disability, obtaining employment law advice in advance of any decision is strongly advisable.

IX.  Refusal of a Request

An employer may lawfully refuse a reasonable accommodation request. Legitimate grounds for refusal include that the proposed measure would not enable the employee to perform the essential functions of the role; that it would impose a disproportionate burden; that it would create material operational difficulties; that a more appropriate alternative exists; or that the proposed measure does not, in substance, address the workplace limitation identified. The critical qualifier is that a refusal must follow a genuine assessment. A refusal reached without meaningful consideration of the statutory test — however well-intentioned — carries materially greater legal exposure than a considered refusal supported by evidence.

X.  Recurring Deficiencies in Employer Practice

Certain patterns recur with some frequency in disability discrimination complaints: an immediate rejection of the request without individualised assessment (for example, reliance on a generic “no flexible working” policy without addressing the specific disability-related issue); an assumption, unsupported by evidence, that the employee cannot perform the role; reliance on medical information that is materially out of date; failure to consult the employee before reaching a decision; failure to consider alternative measures once an initial proposal is found unworkable; a premature progression toward dismissal; and an absence of documentation capable of substantiating what was considered and why.

Each of these defects is independently capable of undermining an employer’s position in subsequent proceedings, irrespective of the ultimate merits of the substantive decision.

XI.  Defending a Disability Discrimination Complaint

Where an employee brings a complaint under the Employment Equality Acts alleging disability discrimination, the employer’s evidential burden extends well beyond the reasonableness of the ultimate decision. The employer will typically need to demonstrate that it properly understood the employee’s circumstances, considered the relevant

medical and factual evidence, consulted the employee appropriately, identified and assessed possible accommodations, evaluated the practical and financial implications of each, considered alternatives, applied its internal procedures consistently, and reached its decision on a legitimate and evidentially supported basis.

This is the principal reason documentation assumes such significance: the process by which a decision was reached is frequently scrutinised as closely as the decision itself.

XII.  Illustration

Consider an employee whose medical condition begins to affect their capacity to work standard hours, who requests a later start time and an adjusted schedule. An employer’s initial instinct may be that this creates staffing difficulties and should be declined. The legally sound approach requires the employer instead to establish the functional limitations arising from the condition, whether the proposed hours would allow the employee to perform their essential duties, whether the arrangement is operationally viable, its impact on colleagues, whether alternative adjustments might achieve the same objective, and whether further medical or occupational-health input is required. The employer may, following that assessment, properly conclude that the arrangement is not workable. The critical point is that the strength of that conclusion — and the employer’s position if it is later challenged — depends entirely on whether it followed from a genuine process rather than an initial reaction.

XIII.  When to Obtain Legal Advice

Early legal advice is particularly advisable where an employee has requested reasonable accommodation in circumstances involving a disability or medical condition; where long-term sickness absence is involved; where performance concerns may have a disability-related dimension; where dismissal is under consideration; where a grievance or discrimination complaint has been raised, or a WRC complaint threatened; where there is disagreement as to the medical evidence; or where the proposed accommodation carries significant operational or financial consequences. Advice sought before a decision is finalised is materially more valuable than advice sought after a decision has already been communicated.

XIV.  Concluding Observations

Reasonable accommodation is not a question the employer answers once. It is a process — evidence-based, individualised, and properly documented — through which the employer discharges a statutory obligation that exists independently of the employer’s own view of operational convenience. Nano Nagle School v Daly confirms that a disability does not, without more, entitle an employer to conclude that an employee cannot perform a role; that conclusion must be reached, if at all, only after genuine consideration of whether appropriate measures could enable them to do so.

For Irish employers, the object of the process is not to guarantee acceptance of every request made. It is to ensure that every request is assessed lawfully, fairly, and on a basis capable of withstanding scrutiny should the decision later be challenged before the Workplace Relations Commission.

Frequently Asked Questions

What is reasonable accommodation under Irish employment equality law?

Appropriate measures, assessed on an individual basis, that may enable a person with a disability to access, participate in, or advance in employment or training, subject to section 16’s disproportionate burden qualification. Must an employer agree to every accommodation requested?

No. The employer’s obligation is to properly assess the request against the statutory test, not to accept it automatically.

Can reasonable accommodation include a change to working hours?

It can, depending on the circumstances — but the appropriate measure is determined by the individual’s functional limitations and the requirements of the role, not by a fixed category of accommodation.

Can an employer dismiss an employee with a disability?

Potentially, but only where the employer has properly discharged its section 16 obligations, including genuine consideration of reasonable accommodation, before reaching that decision.

Is medical evidence always required?

Not invariably, but it is frequently necessary where the employer requires reliable information as to functional capacity or the suitability of a proposed accommodation.

What did Nano Nagle School v Daly establish?

The Supreme Court confirmed the importance of a genuine assessment of whether reasonable accommodation could enable an employee with a disability to perform the essential functions of their role, rather than an assumption that disability precludes performance of the role.

Can an employee bring a WRC complaint concerning reasonable accommodation?

Yes, under the Employment Equality Acts. Employers should accordingly treat accommodation requests, and the process by which they are assessed, with corresponding seriousness.

Should an employer obtain legal advice before refusing an accommodation request?

Where the request involves significant operational difficulty, long-term absence, performance concerns, potential dismissal, or a risk of a discrimination complaint, obtaining specialist advice before a final decision is communicated is generally advisable.

About Green & Associates Solicitors

Green & Associates Solicitors advises employers across Cork and Ireland on employment law matters including workplace disputes, grievances, disciplinary procedures, discrimination, workplace investigations and WRC proceedings. The firm’s practice in this area is informed by a sustained institutional engagement with equality and inclusive workplace practice — an engagement reflected, most recently, in the firm’s receipt of a 2025 Diversity & Inclusion Award. That perspective is directly relevant to the analysis above: a working understanding of how disability discrimination claims are framed and evidenced under the Employment Equality Acts is central to advising employers on a legally sound reasonable accommodation process.

Whether an employer is considering a reasonable accommodation request, managing long-term absence, or assessing an employee’s continued capacity to perform their role, obtaining advice before a significant decision is taken can materially reduce avoidable legal risk.

Green & Associates Solicitors

Horgan’s Quay, Waterfront Square, Cork, T23 PPT8

Phone: 021 470 8570

Email: info@greensolicitors.ie

Disclaimer: This article is provided for general information purposes only and does not constitute legal advice. Employment equality law is highly fact-specific, and an employer’s obligations will depend on the employee’s circumstances, the nature of the role, the accommodation requested and the relevant legal framework. Employers should obtain specific legal advice before making significant decisions concerning disability, reasonable accommodation, long-term absence or dismissal.