Disability under the act has had a very broad interpretation and will likely include epilepsy.

A disability under the act is defined as:

“disability” means—

(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.    

A legal principle exists to deal with this and is called vicarious liability.

If the act(s) that constitute the discrimination in the workplace are done by a fellow staff member and not by the employer person, S. 15 of the Equality Act has the effect that liability can attach to the employer itself for acts done by staff members. The employer’s knowledge or approval for wrongs done are not required by the act. 

Any employee who has a disability/condition etc. must be provided with what is termed reasonable accommodation at work. In simple terms an employer must do something to assist the employee complete the job. One could think why on earth would we need law to provide for this in respect of human behaviour, but we do. Reasonable accommodation can be simple common-sense measures, such as giving an employee a little bit of extra time to complete the task instead of demanding task completions are done immediately.

Section 16 of the Equality Act states:

(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.

(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

In the case of H. V. W.F.C. the obligations of employers in relation to Reasonable Accomodation was set out as follows.

An employer should:

• Examine the factual position and seek clear medical guidance regarding
  the employee’s capability including the degree of impairment arising from the disability
  and it’s likely duration;
• Consider what reasonable accommodation or appropriate measures can be
  made available by which the employee may become fully competent to perform his
  or her role;
• Consult with the employee along the way to ensure that the employee has
  a say in any decisions which could adversely impact their terms and conditions
  of employment or which could lead to the termination of employment;
• Document the entire process so that it is clear what has been examined
  and considered by the employer and what the response of the employee before a
  decision is made regarding the employee.

If an employer does not provide such an employee with reasonable accommodation, they have moved into danger territory in terms of legal liability.

In cases of this nature the onus of proof is initially on the employee to show that there are facts of significant significance to raise a presumption of discrimination. Once a prima facie case is established by the employee, the burden then shifts completely to the employer. It is then for the employer to prove that that no discrimination arose whatsoever. They are then explaining their conduct in the matter.

If you feel you have been discriminated against at work by reason of having a disability, you can proceed to make a complaint to the Workplace Relations Commission. The complaint form is listed on the said commissions website.

We are biased maybe, but we would suggest a person sits down with a solicitor before completion of this application form, as it can be quite detailed and you must prepare a statement of events as part of the application form. This is the first document describing the facts an Adjudicator will see.

The matter can proceed to Mediation and/or Adjudication in the workplace relations. Cases of this nature generally proceed relatively quickly after they are submitted to the Workplace Relations Commission.

There are very strict timelines in terms of commencing workplace discrimination cases, and any cases brought outside the requisite time period can be what is termed statute barred. You must submit your claim to the Workplace Relations Commission within 6 months of the date of the act that constitutes the discrimination.

Cleary & Co. Solicitors, Litigation Law Firm 

Kieran Cleary and Roger Cleary Employment Law Solicitors can help with questions you may have regarding employment law matters and our numbers are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.

If you have an employment law issue and wish to discuss it, Kieran Cleary and Roger Cleary are experienced Employment Law Solicitors who can help with questions you may have regarding such a matter.

Contact details are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

Cleary & Co. have many years of experience specialising in employment law and have successful track record resolving disputes.

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