In Brief – Disability Discrimination Special

In recognition of International Disability Awareness Day on the 12^th of September, this month’s 'In Brief' brings together a range of resources and cases highlighting the importance of recognising and making provision for employees and applicants with disabilities.  It was reported earlier this year that the majority of calls to IHREC related to disability discrimination so it’s clear it’s an area that still requires much work. 

Defining Disability

A disability is defined in Section 2 of the Employment Equality Acts 1998-2015 as:

(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;

The Irish Human Rights and Equality Commission has a helpful summary of the Equality Acts 1998 – 2015 which sets out the obligations of employers to prevent less favourable treatment of employees including those with a disability which is available here.  

Duty to Make Reasonable Accommodations

In addition, IHREC also has some simple guidance on an employer’s duty to make reasonable accommodations for people with disabilities to enable them to have equal opportunities in the workplace.  Some examples set out in the guidance include flexible working hours, remote working, workplace adaptations. 

A recent publication by Legal Island provides guidance for employers in the making of accommodations (or adjustments in the UK) for employees with a disability.  While the guidance is based on cases in the UK courts, the examples of the types of accommodations and adjustments that can be made to facilitate the employment of an employee with a disability is generic.  The guidance is available here. 

A report from the National Disability Authority in November 2019 reviews the practical obstacles in the way of a seamless reasonable accommodation process and highlight good practices as to how such barriers can be addressed.  The report is available here.

This area has been the subject of much case law over the years with the most well-known being that of Nano Nagle School v Daly [2019] in which the Irish Supreme Court considered in detail what was required by the duty to make reasonable accommodations noting that “Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance….”

More recently an Adjudicator awarded a Complainant €6000 when her employer failed to provide her with reasonable accommodation following an injury to her hand in LT vs Peter Mark Hair Salons Unlimited Company [2021] CA-00033389-001.  A review of this case is available here.

Awareness of Disability

An employee does not have to directly inform their employer that they have a disability in order for the employer’s duty to make reasonable accommodations to arise as the employer may already have knowledge of the disability from discussion with the employee about illness (Receptionist vs a Manufacturing Company [2020] ADJ-00023749).  The Labour Court in Swan O’Sullivan v Seamus Counihan (EDA 1810) stated that knowledge of disability “need not be of a diagnosed condition or disorder constituting a disability within the statutory meaning but to material facts which could reasonably indicate the existence of such a condition or disorder.”

The case of a Senior Nurse v A Health Service Provider [2019] (ADJ-00014052) will however provide some comfort to employers that they will not be liable for any discrimination or failure to make reasonable accommodations if they were unaware of an employee's disability at the material time. In this case the matter of disability did not arise until the Complainant’s employment had ended and her medical condition was not disclosed to her employer by the employee or in any Occupational Health reports during her employment.

Remote Working and Recruitment

The impact of Covid-19 has been more severe for those with a disability or health condition that make them more vulnerable if they were to be infected.  Remote working provides employees with a disability a greater opportunity to get access to and remain in employment.  Employers should consider whether a role can be carried out remotely for all or part of the time when recruiting. 

Legal Island hosted a webinar with Pinsent Masons Solicitors and texthelp to discuss how organisations can embrace diversity and inclusion in their workplace including neurodiversity.  You can read the transcript from and listen to the webinar here.

Training for all Staff

Providing training for all staff in equality matters is an essential part of any diversity and inclusion initiative and should also include disability awareness training.  Line Managers in particular will often be the first port of call for any matters relating to the duty to make reasonable accommodations so they should also have an awareness of this duty and be able to identify any barriers to participation by employees with a disability and consider what/how adjustments can be made.  IHREC has some guidance on what should be included in equality training here.  Legal Island is passionate about Diversity and Inclusion and has invested considerable time and effort in creating an e-learning programme that we feel provides comprehensive compliance training for all employees ensuring they are aware of their roles and responsibilities in promoting a diverse and inclusive workplace for everyone.  You can find out more about the training here.