Equality Law in Ireland

The Disability Ground

The Legislation

•

Irish legislation

: – Employment Equality Acts 1998 and 2011, – Equal Status Acts 2000 to 2011 – Pensions Acts 1990 to 2012 •

EC law

: Article 19 (ex Article 13) EU Treaty, Gender Directives, Race Directive, Framework Directive

Scope of the legislation

Protection against prohibited conduct on the disability ground: Employment Equality Acts:

Apply to all aspects of employment, including access to employment, advertising, vocational training, membership of trade unions and occupational bodies, and collective agreements

Protection Extends To:

• Direct and indirect discrimination • Previous, future, imputed disability • Disability-based harassment • Victimisation

Definition of Disability

• Total or partial absence of bodily/mental functions • Presence of organisms likely to cause chronic disease /illness • Malfunction/malformation/disfigurement of body • Condition/malfunction resulting in learning differently, or • Condition/illness/disease affecting thought processes, perception of reality, emotions or judgment, or resulting in disturbed behaviour

What has been defined as a disability

• • Epilepsy • Alcoholism • Depression • Aspergers Syndrome • Narcolepsy • Asthma

Not Stress

Reasonable Accommodation

section 16 Employers not required to recruit or retain a person who is not fully competent to carry out duties.

Person with a disability is assumed competent and fully capable of duties... provided • Employers take appropriate measures which are effective and practical • Unless disproportionate burden

The test for reasonable accommodation I

• A Health and Fitness Club -v- A Worker Labour Court Determination No. EED037 (case upheld on appeal to the Circuit Court)

The test for reasonable accommodation II

• The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition ….. The employee must also be allowed an opportunity to influence the employer's decision.

• In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

• Secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable.

Caselaw

• Grimes v Iarnrod Eireann: DEC-2012-043 • Graham v Atolvo Enterprises Ltd: DEC 2012-053 • An Employee v A Government Department DEC-2012-063 • A Manager v A Food Production Company: DEC-2012-091

Caselaw

• Murray v Premair Marketing Services Ltd: DEC-2012-085 • Quirke v Sepam Specialists Ltd:DEC 2012-116 • An Employee v A Logistics Company: DEC-2012-011 • A Prison Officer v The Prison Service: DEC-2012-125