Different definitions of disability are used in different contexts. For instance, the definition of disability used to determine eligibility for particular services will not precisely correspond with the definition used to outlaw discriminatory treatment in employment.
Fixed definitions of disability are not practical
No definitive list of conditions that constitute a disability exists as any such list may omit people suffering from significant but rare conditions. Each individual with a particular condition will also be affected in a different way. Symptoms ranging from mild to severe will manifest differently on an individual basis.
Definition under the Disability Act
The
Disability Act, 2005 sets out the following definition of disability: “disability, in relation to a person, means a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment”.
Definition under equality legislation
The Employment Equality Acts, 1998 – 2015 (EEA), prohibit discrimination on the grounds of disability and use a wider definition which includes past, current and future disability.
Under the EEA, disability means:
- the total or partial absence of a person’s 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 which results in a person learning differently from a person without the condition or malfunction; or
- a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.
Environmental factors
The physical and social environment in which a person with a disability works, including the supports they have, will greatly influence the scale of the challenges they face in everyday life. It is for this reason that the EEA require employers to make reasonable accommodation for people with disabilities.
Duty to reasonably accommodate
An employer must take ‘appropriate measures’ to meet the needs of disabled people in the workforce.
Employers must make arrangements that will enable a person who has a disability to:
- have equal opportunities when applying for work
- be treated the same as co-workers
- have equal opportunities for promotion
- undertake training.
If a candidate is not capable, there is no obligation to recruit or retain
Reasonable accommodation does not mean that an employer is obliged to recruit, promote, retain or provide training to a person who does not have the capacity to do a particular job. The EEA require the employer at minimum, to consider whether there are appropriate measures which they could take to support the person to carry out the required duties.
Immediately disregarding a job applicant with a disability on capability grounds, without first considering whether there are appropriate measures which would allow them to carry out the duties of the role could lead to an expensive discrimination claim.
To learn more about disability in the workplace please call the Peninsula 24-hour advice line on 0818 923 923 to speak with an advisor
