Disability Grounds of Discrimination
The disability ground of discrimination relates to any of the following
- the absence of bodily or mental function;
- the presence of disease illness;
- a malfunction malformation of disfigurement of the body;
- a condition or malfunction resulting in learning differently from a person without that condition;
- a condition, illness or disease which affects a person’s thought process, perception of reality, emotion or judgment which results in the disturbed behaviour, including the past or future dispositions imputed to a person.
Disability in this context covers a wide range of physical and mental states and conditions. They include depression, claustrophobia, alcoholism, facial scarring, ADHD, HIV, dyslexia and diabetes. Disability may cover transient conditions arising from illness or accident. Literacy difficulties have not been accepted as a disability in this context.
In the context of the prohibition on the ground of disability, disability includes a disability which exists, previously existed, might exist in the future or which is imputed to the person concerned.
Discrimination on basis of Disability
Disability is one of the prohibited grounds of discrimination. Discrimination on the ground of disability occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on that ground, which exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned. See generally the articles dealing in detail discrimination.
There is also discrimination where person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and similar treatment of that other person on any of the discriminatory ground (here disability) would constitute discrimination.
The comparison is made between a person with a disability and another who either is not disabled or is a person with a different disability.
An employer must not discriminate on any of the prohibited grounds, including disability, in relation to
- access to employment,
- the conditions of employment,
- training or experience for or in relation to employment,
- promotion or re-grading, or
- the classification of posts,
against an employee or prospective employee. A provider of agency work shall not discriminate against an agency worker on such grounds.
The equal remuneration and equal treatment clauses are deemed incorporated in the disabled person’s contract of employment. The clauses require equal remuneration and equal treatment, as between a person who is disabled and a person who is not disabled or who has a different disability. Certain exceptions apply which are specific to disability, which are mentioned below. The general exceptions and limits that apply generally are set out in other articles. This article looks principally at issues specific to disability.
Permitted Disability Differentiation
It is lawful for an employer to provide for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which could reasonably be expected to be done, during that period by an employee without the disability. The rate or remuneration must not be below the minimum the national minimum wage.
It is lawful for an employer or any other person to provide, for a person with a disability, special treatment or facilities where the provision of that treatment or those facilities enables or assists that person to undertake vocational training, to take part in a selection process or to work, or provides that person with a training or working environment suited to the disability, or otherwise assists that person in relation to vocational training or work.
Where, a person with a disability, receives a particular rate of remuneration by reason of the above circumstances or, as the case may be, special treatment or facilities, another person without a disability, or with a different disability, shall not be thereby entitled under equality legislation to that rate of remuneration or to that treatment or those facilities.
Discrimination on the grounds of authenticity, aesthetics, tradition and custom are permitted in relation to the disability ground of discrimination.
An employer is not obliged to recruit, promote or retain an individual who is not or is no longer competent to undertake the duties attached to the position. However, there is a presumption that all persons are fully competent to do work where they can do so with the assistance of special treatment or facilities.
A person who has a disability is deemed fully competent to undertake, and fully capable of undertaking the relevant duties if that person would be fully competent and capable upon reasonable accommodation being provided by the person’s employer.
An employer must in the first instance, give consideration to the possibility of accommodating persons with disabilities (in the above broad sense). The obligation is not limited to disabilities which are long-term or permanent conditions. The employer should consider obtaining a medical and /or other appropriate report, where necessary, in order to assess what might reasonably be done.
Further, the employer must take appropriate measures, where needed in a particular case, to enable a person who has a disability to have access to employment, to participate or advance in employment, or to undergo training, unless the measures would impose a disproportionate burden on it.
An employer is obliged to take appropriate measures to allow an employee to have access to and advancement in employment and training unless the measures would constitute a “disproportionate burden”.
Appropriate measures are effective and practical measures needed to adapt the employer’s business to the disability concerned. They include the adaptation of premises and equipment, working time changes, the provision of training, education or integration recourses and the distribution of tasks. It does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.
What is a disproportionate burden depends on the employer’s scale and resources. In determining whether measures would impose such a burden on the employer, account shall be taken, in particular, of 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.
The predecessor Bill to the Employment Equality Act required employers to make reasonable adjustments to accommodate the needs of persons with disabilities unless they could show that this caused undue hardship. The Supreme Court, on a reference by the President, found this provision to be unconstitutional in that it unjustifiably placed the cost of social legislation on one category of private persons, namely employers.
Under the revised legislation, employers must provide “reasonable accommodation” in respect of the needs of disabled persons. This is a less extensive requirement. Similar obligations apply more generally under the Equal Status in relation to the availability of goods and services to disabled persons. Similar considerations apply in considering the nature and extent of this duty as apply in respect of employment.
Due Consideration of Hiring Disabled Person
A disabled person is considered capable of doing the relevant job if he is capable, with the assistance of appropriate measures provided by the employer or another, unless such measures would impose a disproportionate burden. The failure to provide reasonable accommodation may be discriminatory.
The employer is obliged to examine what options are open to it, in terms of making reasonable accommodation for the disabled persons in those circumstances. The duty requires the employer to consider particular disabilities, which employees and prospective employees have or may have. The employer must take account of needs and views expressed by the person with the disability, given that they have first-hand knowledge of the circumstances. The facility required may be simply an offer of assistance.
State agencies may be able to provide reasonable accommodation of the person’s requirements at a nominal cost to the employer. An employer may be found liable for failure to consider possibilities and reasonable accommodation available at nominal cost.
The employer’s obligation to take appropriate measures / reasonable accommodation, where needed in a particular case, for the benefit of a person who has a disability extends to
- access to employment;
- participation and advancement in employment; and
- access to and participation in training.
The obligation applies as and from the recruitment stage. Where a person cannot attend an interview on account of illness and requests a deferral, consideration should be given to granting it. The employer may need to consider the nature of the disability and what possible reasonable accommodation could be undertaken for it.
The obligation is ongoing during employment. Circumstances may change such that appropriate measures become possible without imposing disproportionate burden. For example, technology or state assistance may render an appropriate measure available without a disproportionate cost to the employer.
Changes to the Physical Environment
The requisite special treatment may require changes to the physical environment and to buildings. Reasonable accommodation may be required in relation to access to the place of employment for a disabled person. It must be shown that access to the premises would be impossible or unduly difficult, without the adjustment. However, the application of the nominal cost limitation limits the practical effect.
The Building Regulations Part M, provide for access to buildings for persons with disabilities. Compliance alone is not necessarily a defence to a claim of discrimination. However, they can be taken into account in establishing what should have been provided for, from a disability access perspective.
Appropriate measures may require the adaptation or provision of equipment or training. A person may be capable of doing the job with the assistance of equipment or appropriate training. This may be available free of cost from the State. The employer need not provide that which a person might ordinarily and reasonably provide for himself.
References and Sources
Employment Law Meenan 2014 Ch.12
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 ( 2nd Ed 2017) Ch. 13
Employment Law in Ireland Cox & Ryan 2009 Ch 15
Equality Law in the Work Place Purdy 2015
Equality Law in Ireland Reid 2012
Employment Equality Law Bolger and Bruton 2012
Irish Employment Equality Law McCurtain and O’Higgins 1989
Disability Discrimination Law Smith 2010
Equal Status Acts Discrimination in Goods & Services Walsh 2012
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Equality Act 1998 (21/1998)
Equality Act 2004 (24/2004), Part 2
Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), insofar as it relates to the previous two Acts
Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16
Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26
Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
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Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
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UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
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Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017