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: DEC2012-053
• 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:DEC2012-116
• An Employee v A Logistics Company:
DEC-2012-011
• A Prison Officer v The Prison Service:
DEC-2012-125