Ciara McCormack’s expert guidance on reasonable accommodation when dealing with employees with a disability. The definition of a disability under the Equality Acts 1998 and 2004 is quite broad. It is defined as one of the following:
- “the total or partial absence of bodily or mental functions, including the absence of a part of a person’s body;
- the presence in the body of organisms causing, or likely to cause, chronic disease or illness;
- the malfunction, malformation or disfigurement of a part of a person’s body;
- a condition or malfunction that results in a person learning differently from a person without the condition or malfunction;
- a condition, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour; and shall be taken to include a disability that exists at present, or that previously existed but no longer exists, or that may exist in the future or that is imputed to a person.”
In reality people probably encounter workers with disabilities far more often than they realise. It’s just not apparent as we might think it ought to be. Disability can range from an employee in a wheelchair, an employee suffering from depression to an employee with an alcohol or drug addiction. According to Section 16 of the Employment Equality Acts, 1998 an employer must do “all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities”. Therefore, when dealing with an employee with a disability it is important to make reasonable accommodations. When determining what reasonable accommodation is we need to look at the below?
- The financial and other costs entailed
- The scale and financial resources of the employers business and
- The possibility of obtaining pubic funding or other assistance
By examining the above we can determine what the definition of reasonable is, whilst the legislation also states that there is no obligation to keep a role open for an employee who is not “fully competent and available” to perform the duties of their role. The employer must go to lengths to demonstrate that they have exhausted all other options and alternatives before looking at dismissing the employee. Unless these alternatives place a disproportionate burden on the employer they may be considered a reasonable accommodation. Recent case law would back up the assertion that unless an employer exhausts all alternative accommodations there is a sizeable risk of compensation should a claim be lodged. A shift manager in a fast food restaurant was awarded €17,000 in compensation for disability related discrimination for the complaints manager ignoring a medical recommendation for the complainant not to work nights on a temporary basis. (ADJ-00000187). Based on the above, if an employee has an alleged or actual disability it would be advisable to refer them to the company doctor or an occupational health specialist for a medical opinion. Based on the information provided in the medical report they should then implement necessary “reasonable accommodations”. If an employee is out sick and cannot fulfil their role, we need to consider what job the employee may be capable off and how we make the employee fully capable. If you have any questions in relation to the above please do not hesitate to contact Peninsula on 0818 923 923 and one of our experienced advisors will be happy to assist.
