The Employment Equality Acts 1998 – 2015 (the EEA), places a legal duty on employers to do all that is reasonable to accommodate a person with a disability by providing special treatment or facilities.
What is considered a disability is quite broad. In Ireland, a disability under the Employment Equality Acts 1998-2015 includes a wide range of physical, intellectual, mental, or emotional conditions that cause a substantial, often long-lasting, limitation on a person’s ability to work. It covers past, present, temporary or future conditions, such as physical injuries, chronic illness, or mental health issues.
Broadly, disability can include a variety of physical, intellectual, learning, cognitive, emotional or medical conditions. It’s defined within a variety of legislations, including the Disability Act 2005 and the Employment Equality Acts 1998-2021.
Case law has also established disability to include conditions such as depression, epilepsy, claustrophobia, agoraphobia, alcoholism and addiction, facial scarring, HIV infection, diabetes, and dyslexia.
For instance the Disability Act 2005 interprets disability as meaning a “substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual disability”.
If an employee with a disability as defined above is returning to the workplace following a period of sick leave, an employer cannot decide that they are incapable of doing a job without considering whether they could take appropriate measures to support them. Medical evidence or Occupational Health appointments can assist with this assessment.
Employers must take “appropriate measures” to enable a person who has a disability to:
• have access to employment
• participate or advance in employment
• undergo training
This duty on the employer is limited by the extent to which such a measure would constitute a “disproportionate burden”. While accommodations are required, employers are not obliged to incur excessive costs. The “Disproportionate Burden” test considers the employer’s size, financial resources, and the possibility of public funding. Measures are not required if they cause excessive costs and an administrative burden for the company. Case law has helped to clarify the extent of this duty, in particular the landmark Supreme Court decision of Daly v Nano Nagle School (Nano Nagle).
Common adjustments include providing assistive technology, flexible working hours, re-allocating non-essential tasks, or modifying workstations.
The obligation to provide reasonable accommodation can only be properly satisfied where an employer has carried out an assessment, whether that is medical, ergonomic or occupational, in order to see what appropriate measures can be put in place.
It’s also recommended that employers consult with the employee in the assessment process. While Irish law does not go so far as to say consultation is a mandatory obligation in each and every case, The Supreme Court decision of Daly v Nano Nagle School (Nano Nagle) makes it clear that employers would be wise to do so. As quoted by the Supreme Court, “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”.
All decisions regarding: (i) the viability of any and all appropriate measures considered and (ii) whether such appropriate measures would constitute a disproportionate burden should be clearly documented. Employers would also be wise to revisit the accommodation with the employee on an ongoing basis to ensure it remains effective, especially if circumstances change.
The person may decide to make a complaint to the WRC for discrimination on the grounds of disability for failure to provide reasonable accommodation.
In the event of a successful discrimination claim to the WRC, an employee may be awarded compensation for the effects of discrimination resulting from the failure to provide reasonable accommodation up to a maximum of two years’ remuneration or €40,000 (whichever is greater).
As always, if you require any support with HR or Employment Law you can contact the ISME HR Team on 01 6622755 Option 2 or via HR@ISME.ie
