by Nóra Cashe, Litigation Manager at Peninsula Ireland
Employees with disabilities make up an important part of the Irish workforce.
Recent 2022 figures, measuring disability as a long-lasting condition or difficulty, show that almost a quarter (22%) of Ireland’s population say they experience at least one long-lasting condition or difficulty to any extent. Of these, 8% said they experienced at least one long-lasting condition or difficulty “to a great extent or a lot”.
Navigating a disability in everyday life can be difficult, and this can also mean life in the workplace. So, what rights do employees with a disability have at work, and how can employers best support them?
How are employees with a disability protected?
In Ireland, employees with disabilities have the same entitlements and protections as all employees in the country. Employees are protected from discrimination by the Employment Equality Acts 1998-2021, including when alleged discrimination relates to disability.
Under the Act, it is illegal to discriminate against an employee based on nine grounds. These are protected grounds, which include disability, gender, civil status, family status, sexual orientation, religion, age, race, and membership of the Traveller community.
What counts as a disability?
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, facial scarring, HIV infection, diabetes, and dyslexia.
Providing for disability in the workplace in Ireland
Employers are required to take every step to ensure that all their employees – including those living with a disability – are shielded from discrimination in the workplace.
This means providing a safe environment for staff with a disability, both within the workplace culture and as regards their physical environment.
To encourage a workplace culture that is free from discrimination, employers should focus on ongoing education. This could take the form of mandatory, regular training for staff around how to best support individuals with disabilities, both as coworkers and as clients. Employers are also encouraged to lead by example and to ensure that they understand how best to avoid both positive or negative discrimination.
Under the Employment Equality Acts 1998-2021, avoiding discrimination also means making reasonable accommodations for people with disabilities. This is done to allow an employee with a disability to carry out work on equal footing as their colleagues.
What are reasonable accommodations?
Making reasonable accommodations or arrangements enables a person with a disability to have equal opportunities when applying for work, to be treated the same as co-workers, to have equal opportunities for promotion, and to undertake training.
Although employers are obligated to make reasonable accommodations, they are not required to recruit, retain, or provide training to someone who doesn’t have the capacity to do the job.
However, an employer cannot decide a person with a disability is incapable of doing a job without considering whether they could take appropriate measures to support them.
Reasonable accommodations could include adapting premises or equipment (such as installing wheelchair ramps or providing computers for the visually impaired), offering flexible working times, providing training or other support, or reassessing tasks and certain duties.
Employer funding for adapting a workplace for staff with disabilities may be available through the Work and Access Employment Programme.
WRC Awards €10,000 for Disability Discrimination
In the case Aoife McGarry v. Temperature Ltd (ADJ-00045072), the Complainant was dismissed by the Respondent after she took a week of absence following a “breakdown”.
The Complainant suffered from depression and had experienced a family tragedy at the beginning of her employment. When her probation was extended by two months, she “broke down”, could not continue working for the day, and communicated to the Respondent that this had been her second “breakdown” in two weeks, and she was seeking medical attention. She was then dismissed because she had not provided a sick cert during her subsequent week of absence. The court heard that the manager did not request one and she provided evidence that she had attempted to provide a sick cert.
The Adjudicator found in favour of the Complainant because, while she had not informed the Respondent of her disability, she had suffered a number of “breakdowns” in front of them and had been on sick leave before she was dismissed. The Adjudicator was therefore satisfied that the Respondent had “constructive knowledge” that the Complainant had a “condition, illness or disease which affected her thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour”.
The Adjudicator further noted that, by dismissing the Complainant, the Respondent showed they were not interested in improving her performance, and that she would not have been treated as she had if she had not broken down and taken sick leave.
The Complainant was awarded €10,000, the equivalent of roughly 4 months’ pay. The Adjudicator also noted that the Complainant had found new work within a month of her dismissal, so it is possible the award would have been higher had she been out of work for longer.
It’s imperative that you understand how to prevent discrimination in the workplace against your employees, including those living with a disability.
About the author
Nóra started her career working in legal firms, gaining valuable experience in practice and procedure. Having completed her law degree, Nóra continued her studies at the Honourable Society of Kings Inns. Nóra worked the area of criminal law for several years and was also a volunteer with Free Legal Aid Centre, before leaving the field to pursue other areas of interest.
During this time, Nóra gained experience working in hospitality learning about the internal operations of the organisations, in addition to sales and management experience.
Nóra joined the Peninsula Litigation team in November 2014, supporting clients at Workplace Relations and Labour Court hearings and Conciliation / Mediation meetings. Nóra is the Litigation & Compliance Manager at Peninsula, leading a team of experienced Consultants at Adjudication hearings, Conciliation and Mediation meetings before both the WRC and the Labour Court.
Nóra has extensive experience in the areas HR and Employment law, authoring many articles for Peninsula and presenting regularly at conferences and learning based seminars
