Disability in Employment and Reasonable Accommodation

The topics of disability and reasonable accommodation has become a forefront topic HR of late. For the purpose of this article, we will focus disability in employment.

Legislation

Ireland has a plethora of legislation set out in which to protect employees that have a disability from being discriminated within the workplace. For example the Employment Equality Acts 1998–2015 and the Equal Status Acts 2000 – 2015 outlaw discrimination in employment, vocational training, advertising, collective agreements, the provision of goods and services. Irish legislation sets out nine grounds on which discrimination is prohibited including; age, sex, sexual orientation, race, disability, civil status, family status, religion and membership of the traveller community. The purpose of the acts are to eliminate discrimination in relation to employment and to provide a framework of enforcement to achieve this aim.  

What is a disability?

According to the National Disability Authority, there is no definitive list of conditions that constitute a disability. Any such list could leave out people with significant but rare conditions. As we are dealing with this topic from an employment law perspective we will revert to The Equality Acts to define a disability:

• “The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body
• The presence in the body of organisms causing, or likely to cause, chronic disease or illness
• The malfunction, malformation or disfigurement of a part of a person’s body
• A condition or malfunction which results in a person learning differently from a person without the condition or malfunction
• A condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.”

It is important that employers understand conditions such as alcohol and/or drug addiction and depression are all classified as disabilities.

Managing Absence

An employer must manage all absences proactively in line with the Company policy which should be consistently applied to all members of staff regardless of the type of absence. This policy should clearly outline the organisation’s expectations when it comes to absence especially what is expected from an employee who is absent from work, who they need to contact and when they need to make this contact.

Reasonable Accommodation

‘Reasonable accommodation’ refers to modifications which would allow an employee with a disability to either continue or to take up a position to enjoy equal employment opportunities. It can include anything from the adaptation of the workplace and workplace equipment to changing working time and hours, restricting of tasks, retraining etc.

When all the above accommodations are being considered to facilitate an employee’s return to work it must be considered as to whether the provision of reasonable accommodation would impose a disproportionate burden to the company. Reasonable accommodation must only be provided where the provision of such measures would not impose greater than a disproportionate burden on the employer. It is necessary to consider the following factors, and ensure to keep documents which will support your consideration for reasonable accommodation: the financial cost to the organisation, the scale and financial resources of the company, public funding or other assistance.

Case Law

The employee worked as an SNA in a special school for children with disabilities since 1998 and sustained a significant injury leaving her wheelchair-bound in 2010. She was later certified “fit to return to work on a phased basis”. The SNA’s role had 16 duties, 9 of which she could complete. Due to the fact she could not fulfil the entire role it was suggested she take on a “floating SNA” role, no such role existed in the school. The school decided to send her back to the occupational Doctor for a 3^rd time. The Doctor stated the employee was unfit to return to work. Upon receipt of this report, the school principal was told that they would not get approval for the role. No further steps were taken. The employee was dismissed by letter advising that she was medically unfit for her position.

The Labour Court awarded the employee €40,000 based on the following: The principal only made one phone call regarding the “floating SNA” role and took no further steps. The principal did not consider reallocating the additional duties to the other 26 SNAs. The school did not consider reallocating the employee to a secretarial role formerly held by her which would have involved little or no adjustment of duties. The school reached a decision of dismissal without seeking any input from the employee.

The School appealed the Labour Court finding and it was dismissed due to the following: There was “insufficient effort” on the part of the school to comply with its statutory obligations to consider and evaluate the findings of the various experts. The employee should have been provided with the chance to make submissions on how she could be accommodated in the workplace before any decision to dismiss was taken. There was a “failure to engage in any meaningful way with the concept of reasonable accommodation”. 

It is strongly advised that advice is sought before taking any decisions not to provide reasonable accommodation. Case law is clear in that the employer must be able to show that all accommodation was genuinely considered prior to coming to such a decision.