A trader and other services provides may not discriminate between customers or services recipients on certain specified grounds. The grounds include that of disability.
The Equal Status Act protects against discrimination in relation to
- the provision of goods and services
- access to, or the use of any place;
- facilities for any banking, insurance, loans or financing;
- entertainment, recreation, cultural activities, transport or travel;
- services provided by a club;
- professional or trade services.
Disability is defined as total or partial absence of a person’s bodily or mental functions including
- the absence of a bodily part;
- presence in the body of an organism causing or likely to cause chronic disease or illness;
- 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, illness or disease which affects a person’s thought processes, the perception of reality, emotions or judgments or which result in disturbed behaviour.
Discrimination involves the application of different treatment, practices or rules to comparable situations or, in most cases, the application of the same treatment, practices and rules to different situations.
Discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
A refusal or failure to provide the special treatment or facilities above shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question
Discrimination based on disability raises issues of the provision of reasonable accommodation for disabled persons. See the sections below on reasonable accommodation.
The prohibition on discrimination on the disability ground does not apply in respect of educational establishments, to the extent that compliance in relation to a student with a disability, would make impossible or would have a seriously detrimental effect, on the provision by the establishment of its services to other students.
Obligation of Businesses and Others
The Equal Status Act provides, that for the purpose of the legislation, discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities, it would be impossible or unduly difficult for the person to avail himself of the service.
Reasonable accommodation refers to the obligation to adjust provisions, arrangements, policies and the physical environment in order to meet the needs of persons who are protected by disability and anti-discrimination legislation. Disability includes a wide range of conditions, whether transient, periodic, mental or physical in this context.
The duty requires the removal of obstacles and adjustments, so that people may enjoy equality of opportunity. The concept is accepted internationally as a means of seeking to secure equality. A failure or refusal to provide the special treatment or facility shall be deemed unreasonable unless such provision would give rise to a cost, other than the nominal cost, to the provider of the facility or service in question.
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 under the Equal Status Act. However, they can be taken into account in establishing what should have been provided for, from a disability access perspective.
The obligation in respect of reasonable accommodation applies to all aspects of the Equal Status Act. This includes the provision of goods and services, accommodation, premises and educational establishments. It applies to the employment context, under the equivlanet Employment legislation.
The changes required can vary from changes in policies and practice to the use of technology and the adaptation of the physical environment. A service provider must do all that is reasonable, in providing the relevant facilities or treatment. This may require consultation with the disabled persons affected.
The service provider must do all that is reasonable to accommodate the needs of the person with the disability, in order to have access to the service concerned. The test is objective. What is reasonable depends on the circumstances. Relevant factors include the nature of the goods, the nature of the relationship between the parties and the impact on the disabled person.
Asserting a Claim
The complainant must establish that it is unduly difficult to avail of the service, in the absence of the reasonable accommodation. The severity of impact on the complainant is an important factor. The more severe the impact, the higher is the duty to take steps to prevent it.
Once a complainant makes a prima facie or presumptive case that he has a disability, that it is unduly difficult or impossible to access the service and that the respondent has not done all that was reasonable to provide the treatment and facilities, then the onus is on the respondent to rebut the inference.
The presumptive discrimination may be rebutted by evidence that there is not a failure to reasonably accommodate the complainant. The cost of providing the accommodation or adjustment is a defence. This significant limitation on the obligation arises from a Supreme Court decision on the constitutionality of an earlier version of the legislation. This effect was to limit the replacement legislation so that the cost incurred need be no more than nominal.
Refusal or failure to provide special treatment or facilities, shall not be deemed reasonable unless it gives rise to a cost, other than a nominal cost to the provider of the service in question.
What is nominal will depend on the circumstances and will be relative to the size and resources of the organisation concerned. The limitation is very significant in practice. Several complaints had been rejected on the basis that the cost was more than nominal.
Duty of Provider
The goods or service provider must enter into consultation with users of the service who are disabled, in order to do all that is reasonable to accommodate the needs of a person with a disability. The procedural obligation to assess requirements for reasonable accommodation applies to both public sector and private sector bodies. The person who seeks the service may be obliged to notify the service provider of his difficulties in accessing the service.
The service provider must adhere to fair procedures in the decision-making process. It should give reasons for its decision. Proper decision-making may require that the individual’s circumstances should be considered. General consideration of the position of persons in a particular category may not be enough. In some cases, it may be necessary to tailor the solution to an individual’s needs.
It is a defence to refuse or fail to provide special treatment or facilities by way of reasonable accommodation if by virtue of another provision of the legislation, a refusal or failure to provide the service in question to that person, would not constitute discrimination. Where a person has a disability that in the circumstances could cause harm to the person or others, treating the person differently to the extent reasonably necessary to prevent such harm, does not constitute such discrimination.
Extent of Duty
The duty requires the entity concerned to consider particular disabilities, which persons may have. It has been suggested that there must be actual or constructive knowledge of the service user’s disability. This may be inferred to arise from the frequent use of the service or facility concerned by persons with that disability.
The service provider 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.
The requisite special treatment may require changes to the physical environment and to buildings. It must be shown that access to the service would be impossible or unduly difficult, without the facility. However, the application of the nominal cost limitation limits the practical effect on business providers.
What is a nominal cost or not, is judged relative to the resources of the respondent. Accordingly, what might be nominal in relation to a multinational or large scale established trader, may not be nominal in respect of a smaller operator.
What Complainant must Show
The complainant must establish that it is unduly difficult to avail of the service, in the absence of the reasonable accommodation. The severity of impact on the complainant is a factor. The more severe the impact, the higher the duty to take steps to prevent it.
It must be shown that it is impossible or unduly difficult, for the disabled person to avail of the service without the accommodation. A service provider should take account of whether the inconvenience, effort, anxiety and loss entailed in using the service would be otherwise unreasonable.
A number of cases have involved refusals by taxi drivers to take guide dogs. In cases of persons with guide dogs generally, the guide dog should be registered as such so that the respondent may not assert health and safety grounds, to deny access. Other complainants have sought sign language facilities and adjustments of assessment and disciplinary procedures in education.
Regulations may provide that new road or rail passenger vehicles which are purchased or leased by an operator of a passenger road service or passenger rail service and are to be used for the purposes of either such service shall be equipped so as to be readily accessible to and usable by persons with a disability.
They shall not apply to an operator whose principal place of business is outside the State. The Regulations may be of general application or may be made in respect of any category of operator or vehicle and may specify the number or proportion of an operator’s vehicles, or any category thereof, to which the regulations apply
Regulations may require the operators of bus and rail stations to provide facilities at those stations so that they are readily accessible to and usable by persons with a disability. Regulations may be of general application or may be made in respect of any category of operator or station.
Where a road authority, constructs or alters, or consents to the construction or alteration of, any public footway or other public pavement, it shall, for the purpose of facilitating the mobility of persons with a disability, provide, or require the provision of, ramps, dished kerbs or other sloped areas at appropriate places at or in the vicinity of any pedestrian crossing or intersection used by pedestrians in that part of the footway or pavement so constructed or altered.
The National Education Welfare Board has published guidelines in relation to special needs educational provisions. The guidelines require that schools should promote equality for members of the school community, prevent discrimination and allow appropriate accommodation of differences, including special education needs in accordance with Equal Status Act. There have been cases which have required adjustment of codes of behaviour, disciplinary proceedings and sanctions to take account of special needs of students with disabilities
Schools have been permitted to treat persons differently, where the disability could harm themselves or others. There is a defence for educational institutions to the extent that compliance in relation to a student with a disability, would make impossible or have a seriously detrimental effect on the provision by the education establishment of its services to other students. Some reasonable accommodation cases have concerned children attending mainstream schools. Educational institutions are not subject to the reasonable nominal cost provisions.
Obligation to Provide Accomodation for Employees
Employers are obliged to do take appropriate measures to accommodate the needs of a person having a disability by providing special treatment or facilities that may be necessary. A refusal or failure to provide special treatment or facilities is deemed reasonable if it would give rise to a cost, other than a nominal cost, to the employer.
What constitutes a nominal cost to the employer depends on the size of the organisation and its resources. The breadth of the definition of disabled needs to be recalled in this context.
Under the revised legislation, employers must provide “reasonable accommodation” in respect of the needs of disabled persons. This is a less extensive requirement.
The obligation applies at 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.
Reasonable Accommodation for Employees
An employer is obliged to do all things reasonable to accommodate the needs of the person who has such a requirement, so long as the requirement does not give rise to more than a nominal cost. Failure to provide reasonable accommodation may be discriminatory. What is a nominal cost will depend on the size and scale of the business, its resources and whether it is a public or private entity.
An employer may be obliged to examine what options are open to it, in terms of making reasonable accommodation for disabled persons. 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.
Reasonable accommodation may be required in relation to access to commercial premises for a disabled person. Reasonable accommodation must be made in terms of access to goods and services for disabled persons.
Disability based equality cases in the educational sector are commonly focused on the issue of reasonable accommodation. Other disability cases have arisen in the context of entitlement to health care and benefits from a public authority.
Many of the cases regarding disabled persons involve treatment in public places. Complaints have been upheld, where the treatment of a disabled person in a public house, mode of transport or public institution, was such as would not have occurred in respect of a person who was not so disabled.
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