Disability discrimination and the right to reasonable accommodation under the Employment Equality Acts

What is disability discrimination?

Discrimination on the ground of disability means being treated less favourably than someone who does not have a disability, or who does not have the same disability as you. The term ‘disability’ includes physical, intellectual, mental and emotional conditions. By law, you have the right to equal treatment if you have a disability.

What is disability discrimination in employment?

The Employment Equality Acts (“EEA”) state that employers, potential employers and workplaces must not discriminate against people with a disability.

The areas of employment covered include advertising, pay, access to employment, vocational training, work experience, terms and conditions, promotions, pensions, dismissal, and collective agreements.

For the law in relation to reasonable accommodation in the workplace, please see our factsheet on Disability discrimination and the right to reasonable accommodation under the Equal Status Acts.

What types of discrimination are covered by employment law?

Four types of disability discrimination are covered in the EEA.

Direct discrimination – when you receive different, less favourable treatment due to your disability.
- For example, if your employer pays you less money than somebody doing the same job because you have a disability and they do not.
Indirect discrimination –where an apparently neutral rule puts you at a particular disadvantage compared with others.
- For example, if you are visually impaired and applying for a job, but a potential employer only provides standard hardcopy materials for an interview.
Discrimination by imputation – where someone treats you less favourably because they mistakenly assume you have a disability even though you do not.
- For example, if your employer bars you from a training session because they incorrectly assume you have a learning disability.
Discrimination by association – where you are treated less favourably than others because you are associated with a person who has a disability, even though you have no disability.
- For example, if your employer treats you less favourably because a member of your family has a disability.

Harassment, sexual harassment and victimisation in workplaces

The EEA also prohibits harassment, sexual harassment and victimisation in the workplace.

Harassment – when you are treated in a hostile, intimidating or degrading manner at work due to your disability. The harassment can be from your employer, a fellow employee or a client or customer of your employer.
Sexual harassment – any form of unwanted sexual behaviour that treats you in a hostile, intimidating or degrading way. This may include verbal, non-verbal or physical conduct of a sexual nature.
Victimisation – when your employer treats you adversely or in a negative way because you have complained to them of discrimination, supported another employee with their complaint, or made a complaint of discrimination to the Workplace Relations Commission or similar forum.

Examples of employment discrimination on the ground of disability

It may be discrimination on the ground of disability if:

A job advert states that the company cannot hire people who use a wheelchair.
You are told at an interview that you cannot be hired as you have a physical disability.
You lose your job because you have an intellectual disability which means you perform your job differently from a person who has no such disability.

Who is covered by the Employment Equality Acts?

You are protected by the EEA if you are an employee, an agency worker, a trainee, an applicant for vocational training, or a member or potential member of certain bodies and partnerships.

An employee – works or has worked under a contract of employment. Employment means performing a service under the direction of another person in return for pay. Contracts include contracts of apprenticeship and any other written or verbal agreements where you agree to provide work or service to another person.
An agency worker – provides an employment agency with work or service for another company or person, whether or not the other company or person signs the contract.
Vocational training – is instruction in the skills or knowledge you need to do a particular job.
Members of certain bodies – belong to workers’ organisations, trade unions or professional associations that set standards for their members.

What is not covered by the Employment Equality Acts?

There are some exemptions under the EEA.

These include:

Educational, technical or professional qualifications – Employers are allowed to reject applicants who do not hold qualifications which are generally considered necessary for the job.
Benefits for an employee with a family – Employers are allowed to provide certain benefits to employees who have families.
Officers or servants (employees) of the State – It is not discrimination if some employees in these categories have to meet special requirements, such as Irish citizenship.
Primary and post-primary teachers – Employers can require teachers to be proficient in the Irish language.
Defence Forces – The Defence Forces are allowed to treat employees differently on grounds of age and disability.
Employment in another person’s home –EEA rules do not apply where someone is taken on to provide a personal service in a private home, for example as a childminder or carer.
An Garda Síochána and the Irish Prison Service –The Gardaí and the Prison Service can assign certain tasks to either men only or women only, such as body-searching, controlling violent individuals or crowds and rescuing hostages. They can also state a minimum height requirement that is different for men than for women. They are allowed to recruit more employees of one gender than the other as needed.
Certain religious, educational, and medical institutions – Certain bodies may give preference to employees of a particular religion where it is reasonable to do so to maintain the religious ethos of the institution. They may also take reasonable steps to prevent an employee from undermining the religious ethos of that institution.
Disability – In some cases, the EEA allow 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.

What must employers do to avoid disability discrimination?

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 and practical measures to enable you to do your job (or apply for a job). This includes enabling you to access employment, to participate and advance in your job or to attend training.

You have the right to ask for reasonable accommodation both at the recruitment stage and in the workplace. Reasonable accommodation could mean an employer will adapt premises, change working hours or assign tasks differently.

Examples of reasonable accommodation

If you are deaf, providing an Irish Sign Language interpreter at your interview.
Allowing you to work partially or fully from home due to medical needs.
If you are unable to perform 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.

What measures would be unreasonable?

Employers and potential 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, measures to adapt the premises 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 may be unreasonable to create a role for you that is not needed.
If you cannot use stairs but it would be structurally impossible to fit a lift in the workplace, this may be a ‘disproportionate burden’.

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

The Department of Social Protection has a Reasonable Accommodation Fund, which may be able to help with costs. This could cover measures to make your workplace more accessible, provide adapted equipment or hire a sign language interpreter for your interview. Both you and your employer or potential employer can apply to this fund.

Your employer should make decisions about reasonable accommodation on a case-by-case basis and carefully consider what is appropriate for you in your particular circumstances. Even if they believe that the measures would be too expensive or not practical, they must still formally assess the possibilities. They must not simply refuse you without considering the issues.

Do I need to tell my employer or potential employer about my disability?

Although there is no obligation on you to disclose your disability, an employer or potential employer cannot provide you with reasonable accommodation unless they have been made aware of that disability. Certain disabilities may be obvious to an employer, such as where a person uses a wheelchair, but if you have a hidden or invisible disability, it may be wise to let an employer know if you require reasonable accommodation.

Please note that where your disability may cause you or another person to be exposed to danger, you are in fact legally required to disclose the disability to an employer.

Does an employer have to consult me on reasonable accommodation?

Employers are not legally obliged to consult you about reasonable accommodation for your needs. However, they are advised to do so because it will help them to comply with the law. This consultation is called ‘meaningful participation’.

Examples of meaningful participation:

If your employer has a number of options on how to reasonably accommodate you, they should ask your opinion on what is most appropriate.
Your employer should ask your opinion on measures you think would enable you to do your job.
They should keep you informed if they cannot provide reasonable accommodation and might therefore have to dismiss you from your job.

An employer would be denying you meaningful participation if:

You request reasonable accommodation and they refuse without first discussing the assessment process with you

They do not consult you on options for reasonable accommodation.

Example: A Special Needs Assistant won her Supreme Court case against a school that failed to provide her with reasonable accommodation

A Special Needs Assistant (‘SNA’), who was paralysed from the waist down after an accident, was fired after she tried to return to work. The school stated that she was unable to do her job after the accident, although an occupational therapist had found that she would be able to do many of her tasks if the school changed some of her duties. The SNA took a case all the way to the Supreme Court and won, arguing that the school had not followed its legal obligations in trying to find reasonable accommodation.

The Supreme Court set out helpful guidance in this case on the scope of an employer’s obligation to reasonably accommodate its employees. In particular:

– Reasonable accommodation can include redistributing core duties as well as non-core tasks.

– Employers are under a mandatory duty to take all “appropriate measures” to accommodate an employee with a disability unless any measure would constitute a “disproportionate burden”.

– A wise employer will provide meaningful participation, not only with the person seeking reasonable accommodation but with other employees too.

– An employer must explore the possibility of applying for public funding or other assistance when considering whether they can afford to reasonably accommodate an employee.

What must my employer consider in deciding on reasonable accommodation for me?

If your employer or potential employer is aware of your disability, they must consider what reasonable accommodation they can offer you.
They must do this on a case-by-case basis in light of your particular circumstances.
They may ask for a medical or occupational assessment.
They should consult you on the options available to reasonably accommodate you.
They must find out whether public funds are available to pay for measures of reasonable accommodation.
If your employer decides that reasonable accommodation would be too costly in terms of finance and administration, they must be able to show proof of this.

The employer does not need to create a new job for you, as this would be a disproportionate burden.

Is it discrimination if my disability stops me getting a job?

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 certain duties 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.

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

How can I complain about disability discrimination at work?

If you believe you have been discriminated against or harassed in the workplace, or if you believe an employer has failed to provide you with reasonable accommodation, you should contact IHREC or get legal advice on your options. Do not delay in seeking legal advice as the time limit for bringing a complaint is very short.

Complaints under the EEA are made to the Workplace Relations Commission (WRC).

To help you decide whether to complain, you can first request information from your employer, using form EE2 on the WRC website. For example, you could ask your employer why they made a decision about your duties or treated you in a certain way.

To make your complaint, use the online complaint form on the WRC website. You should state when the discrimination first and last occurred or if it is continuing. Make sure you use the proper name of your employer. You can check this on your payslip or on the website of the Companies Registration Office.

You must make your complaint within six months of the last date of discrimination. The WRC can extend the time limit by a further six months for ‘reasonable cause’, for example, where you can produce evidence that you were very ill during the initial six month period. However, the WRC very rarely exercises this power and you should ensure that your complaint is brought within six months where possible.

Learn more about how to take a complaint to the WRC.

What does the WRC do with a complaint?

When completing the WRC complaint form, you will be given the option of mediation before proceeding to an adjudication hearing.

Mediation

If you choose mediation, a mediator meets with you and your employer or potential employer to see if you can both agree on a solution. Mediation can work only where both sides agree to engage in the process.

The mediator takes a neutral stand. Their job is to work with both parties to reach an agreement. If they succeed, both parties must agree on the terms of settlement, which are confidential and legally binding.

If you do not wish to engage in mediation, or if mediation is unsuccessful, your complaint will proceed to an adjudication hearing.

Adjudication (Hearing)

The WRC will assign your case a hearing date and an adjudication officer. A hearing can be held in person or remotely.

If you wish to provide written submissions (i.e. written arguments applying the law to the facts of your complaint), you should do so at least 15 working days before the hearing date. You may bring witnesses to the hearing to give evidence, as well as your union or legal representative if you have one.

You give evidence under oath or affirmation. Your employer and all other witnesses will do the same. The adjudication officer may then hear legal arguments from both sides.

After the hearing

Once they have decided on the outcome of a complaint, the adjudication officer will send you their decision in writing. The timeline for receiving a decision varies depending on the case, but may take several months after the day of your hearing.

If the adjudication officer decides that you were discriminated against, harassed or not provided with reasonable accommodation, they can award you redress. Redress can take many forms and may include, for example, financial compensation or an order for your employer or prospective employer to carry out a certain action, such as re-instating you in a position or delivering training to all staff.

If the adjudication officer decides that you were not discriminated against, and you are not satisfied with the decision, you can appeal to the Labour Court within 42 days of the date of the decision.