Disability Discrimination at the Workplace

If an employee has a disability they must be provided with what is termed ‘reasonable accommodation’ by the employer in the work environment, or discrimination at the workplace may arise.

What is considered a disability is broadly described by the legislation but a helpful case describing the concept of a disability is HHD V DAB C335/11 and C337/11 wherein it was stated:

“that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.

disability discrimination at the workplace

Disability Discrimination at the Workplace & Reasonable Accommodation

What reasonable accommodation entails and the full obligation on the employer has been subject to much caselaw over the years, but we now have the helpful case of Nano Nagle School V Daly 2019 IESC 63 for clarification and guidance on the extent of employers obligations when it comes to providing reasonable accommodation to an individual who has a disability under S.16 of the Equality Acts.

The Judge held held at paragraph 84 that: “… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

The Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his/her role, even on the provision of reasonable accommodation, then there is no discrimination at issue.

Two-Stage Enquiry

It is prudent for an employer to carry out a two-stage enquiry when deciding upon reasonable accomodation. The factual position in terms of the employees capability needs to be assessed and this includes assessing medical evidence.  

Then if it arises that the person is considered not fully capable of completing the role, to assess what special treatment facilities should be made available in order for the employee to become fully capable.

The employee should be allowed to participate in this process and furnish any medical evidence or views of their own.

If this two-stage enquiry does not take place, a procedure regarding dismissal, for example, adopted by an employer may be fundamentally flawed.

Disclaimer – Disability Discrimination at the Workplace & Reasonable Accommodation Article

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 obtained 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.

Disability Discrimination at the Workplace

Employment Law Articles

Roger Cleary

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