Employment Equality Acts – Employees with Disabilities

The Employment Equality Acts 1998 – 2015 state that discrimination occurs where a person is treated less favourably than another is, has been or would be treated, on the grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race or membership of the Travelling community.  In this article, we will look at the specific situation of employees, or prospective employees, who have a disability.

The Acts state that an employer shall not discriminate against an employee or prospective employee in relation to:

• access to employment,
• conditions of employment,
• training or experience for or in relation to employment,
• promotion or re-grading, or
• classification of posts.

The definition of “disability” in the legislation is wide ranging and includes:

• 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, or
• 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;

It has been held that “disability” includes both temporary and permanent physical and mental conditions. 

Examples of some conditions which have been found to come within the definition of “disability” for the purposes of the Acts include:   a whiplash injury which lasted for three months, stress, alcoholism, visual impairment, anorexia, multiple sclerosis, diabetes, depression, epilepsy, vertigo, hearing loss, cerebral palsy, dyslexia, ulcerative colitis, and a lung infection.

The protections of the Act extend to virtually all classes of employee including full-time, part-time and temporary employees in both the public and private sectors.

RESONABLE ACCOMODATION FOR EMPLOYEES WITH DISABILITIES 

In addition to the prohibition on discrimination against employees with a disability, the Employment Equality Acts 1998 – 2015 place an obligation on employers in certain cases to accommodate employees with a disability.

The legislation imposes a positive obligation on employers to provide reasonable accommodation, by way of taking “appropriate measures”, 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 the employer.

In determining whether the measures would impose such a burden, the following factors will be considered:

the financial and other costs to the employer,
the scale and financial resources of the employer’s business, and
the possibility of obtaining public funding or other assistance.

Section 16 (4) of the Employment Equality Act 1998 states that “appropriate measures”, in relation to a person with a disability:-

• means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,
• includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources,
• does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.

Examples of possible “appropriate measures” for an existing employee include making adjustments to the premises or the employee’s workstation, allocating some of a disabled person’s duties to another employee, altering the person’s hours of working, providing communication aids or providing additional training etc.   There is nothing within the Employment Equality Acts which specifically mentions redeployment or transfer to another role as an “appropriate measure”, however it is generally recognised that it may be an appropriate option in certain cases, depending on the particular facts and circumstances.   

The scope of the obligation on employers includes a duty to accommodate individuals during the recruitment process also.  

Section 16(1) of the Employment Equality Acts 1998 – 2015 does recognise the fact that if an employee is no longer capable of carrying out their original role (even with the provision of reasonable accommodation) then there is no obligation on the employer to continue to employ the employee in that role.  The legislation clearly states that it does not impose a requirement on a business to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual is not (or, as the case may be, is no longer) fully competent, available and able to undertake the duties attached to that position.  If the question of termination of an employee’s employment due to incapacity arises, the matter must be handled very carefully by the employer, in order to avoid a possible claim for discriminatory dismissal.