Disability and Work

In some cases, the EEA allows employers to offer different pay rates to workers who are disabled if their disability means that they cannot do the same amount of work in the same time as a co-worker who does not have a disability. Section 35 of the EEA also allows employers to make special additional payments to people with disabilities and to provide special arrangements or facilities to enable them to work. 

‘Reasonable accommodation’ means making practical adaptations to the workplace or working conditions so that you can do your job. In general, an employer must provide reasonable accommodation to enable a person who has a disability to work or apply for work. However, the employer may be exempted from this duty if the accommodation would impose a ‘disproportionate burden’ on them. This means that it would be too costly or impracticable – or that they might reasonably expect you to meet your own needs. 

In certain circumstances, an employer cannot be accused of discrimination in refusing to hire, promote or retain you. 

This is when you:

• Will not do the job they need you to do, or
• Will not accept the conditions of work, or  
• Are not fully competent and capable of doing the job, or  
• Are not available to carry out all your duties because of the conditions you have to work in 

For example, it is not discrimination if:

• A farmer refuses to hire you because you do not want to work outdoors.
• You are not promoted from your job as an office junior as you have not yet learnt to do spreadsheets 

Employers have to ensure that hiring requirements and interviews do not discriminate against people, even unintentionally.

Certain questions asked at interview or during the selection process can also be discriminatory.

Legitimate aim

Employers have to show that every condition of employment is justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. However, employers should ensure that any qualities required of an employee are clearly linked to the job in question.

Transparency

Employers should be able to show that there was no discrimination at any point of the hiring process. An employer may be discriminating against you if there is a lack of transparency in the process, such as unclear selection criteria.

Good practices

Good practices include:

• Interview and selection procedures are clear and transparent, and comply with the organisation's policies;
• Interview notes and minutes are retained;
• Members of the interview panel are independent of the employer, have extensive experience and are trained in the requirements of anti-discrimination law;
• A pre-interview meeting is held at which the panel draws up questions relating to key areas;
• Marks are allocated for critical attributes required for the duties of the position based on objective pre-determined criteria;
• People with disabilities are reasonably accommodated to allow them apply for the job. For example, providing suitable technology for an interview.

If your disability may cause you or another person to be exposed to a danger, you must inform your employer. Otherwise, you are not legally obliged to make your employer aware of your disability, although it is a good idea to do so. 

The employer can only be held responsible for providing reasonable accommodation for your disability if they are aware of it. You should explain any problem fully and honestly so that your employer can consider ways to help you.

Example: Sacked for disguising a mental health issue

An employee kept taking days off sick, claiming they had a stomach problem. They eventually admitted that the real diagnosis was depression, and were dismissed. The employer might have found ways to help them cope if they had known the true situation from the start, but could not be expected to accommodate problems they were not aware of.

If your employer knows you have a disability, they must make ‘adequate enquiries’ to find out what sort of reasonable accommodation you need. This can mean getting a medical report stating whether you are capable of doing particular tasks and what sort of assistance you need. 

Employers, potential employers and workplaces must make ‘reasonable accommodation’ for people with a disability. 

This means that if you have a disability, your employer or potential employer must take effective practical steps to enable you to do your job, apply for a job, attend training or make progress in your job. 

You have the right to ask for reasonable accommodation both at the recruitment stage and at work. Reasonable accommodation could involve adapting premises, changing working hours or giving you different tasks. However, the measures must be reasonable for the employer as well as for you. See the section below ‘What measures would be unreasonable?’

Your employer should make decisions about reasonable accommodation on a case-by-case basis and should carefully consider what is appropriate for you. Even if they think the measures would be too expensive or too difficult to put into practice, they must still formally assess the possibilities. They must not simply refuse you without considering the issues. 

Examples of reasonable accommodation:

• If you are deaf, providing an Irish sign language interpreter at your interview
• Allowing you to work partly or fully from home due to medical needs
• If you are unable to do certain physical tasks, allocating these to other people and giving you tasks that you are able to carry out
• Making the workplace wheelchair accessible by fitting ramps

The employer must at least consider your request. They must look at all possible options to accommodate you before deciding whether they are practical or not. They can only refuse to provide reasonable accommodation if the adaptations would be too burdensome, too costly or impracticable. 

Your employer has no obligation to provide treatment that you would normally provide for yourself (such as glasses or hearing aids).

Example: It is not discrimination if you cannot do the job you were hired for 

 A factory worker developed a disability which meant she was unable to work in cold temperatures, lift weights or do night shifts. She was sacked from her job as a chilled-goods packer as she could no longer do the tasks she had been hired for. She claimed unfair dismissal under the EEA due to discrimination on the ground of disability. However, the judge agreed with the employer that there was no reasonable way to accommodate her needs in a frozen-food factory. Therefore, her dismissal did not involve illegal discrimination.

Employers do not have to take measures that place a ‘disproportionate burden’ on them. This means measures that would be impractical or very costly. For example:

• If you are employed by a small business, adaptations to the workplace may be too expensive for your employer.
• If you are physically unable to perform a task, and there is no other role that you could take on, it would be unreasonable to create a post for you that was not needed.
• If you cannot use stairs but it would be structurally impossible to fit a lift in the workplace, it would be unreasonable to try.

Several factors affect the decision on whether a measure would be reasonable or disproportionate. These include the costs, the size and financial resources of the business, and whether grants or public funding may be available. 

An employer is not obliged to hire someone who is not competent to carry out the duties of the role. However, if you cannot do a job because of a disability, the employer must still assess whether they can reasonably accommodate you. They must consider all aspects of your employment, including how it would affect other workers and the workplace. 

If you are not able to fully undertake your role, even with reasonable accommodation, then turning down your application does not amount to discrimination. 

If you have a disability, you have the same rights as anyone else regarding promotion – as long as you are competent and capable of doing the job. In the same way as hiring, selection and interview, your employer must give you equal consideration for promotion and decide whether they could meet your needs through reasonable accommodation.

It is discrimination when an employer fails to offer you the same opportunities for promotion as other employees because of your disability.

Example: An employer refuses to promote you because you had experienced a mental health problem in the past.

Employers can insist on dress codes in certain circumstances, but they must avoid unlawful discrimination in doing so. In some cases, a dress code policy may amount to direct or indirect discrimination. For example, …]

If your disability prevents you from complying with the dress code at work, your employer must make reasonable accommodation to ensure you can go on working there. 

Dismissal: Employers cannot dismiss you because of your disability.

For example, it may be discrimination on the protected ground of disability if your employer dismisses you for taking time off work due to stress.

Constructive dismissal: happens when you feel forced to resign because your employer makes things difficult for you at work. If you believe they are discriminating against you because of your disability (as a protected ground), you may be able to make a complaint under equality law.