- What is Disability?
The Employment Equality Act, 1998 defines ‘disability’ as:
"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, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour".
The Act also states that disability “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”.
An imputed disability is where a person might not have a disability but someone else thinks they do.
The Disability Act 2005 defines ‘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.”
Census 2011, and other official surveys, used the following definition of a person with disability:
A person with one or more of the following long-lasting conditions or difficulties:
- Blindness or a severe vision impairment
- Deafness or a severe hearing impairment
- An intellectual disability
- A difficulty with learning, remembering or concentrating
- A difficulty with basic physical activities
- A psychological or emotional condition
- A difficulty with pain, breathing, or any other chronic illness or condition
There is no definitive list of conditions that constitute a disability
Note: Disability can be visible or invisible and may or may not be disclosed.
- Do people with Disabilities have equal employment rights?
Yes. Employees with disabilities have the same employment rights as other employees under the law.
The Employment Equality Acts 1998-2011 outlaw discrimination on the grounds of disability in employment, including training and recruitment. However, the Acts state that an employer is not obliged to recruit or retain a person who is not fully competent or capable of undertaking the duties attached to a job.
- Do people with Disabilities have equal employment rights?
- Follow the relevant Acts and laws including the Employment Equality Act.
- Do not discriminate on the basis of disability.
- Provide reasonable accommodations as appropriate.
- Focus on people’s capacity to do the job, where they have appropriate supports.
- Have written policies on inclusive recruitment and disclosure of disability. Include the steps you will take as an employer to support employees with acquired disabilities and state how you can help them to return and remain in work.
- Develop a PEEP (Personal Emergency Egress Plan).
- Educate your workforce.
- Ensure employees are not harassed because of their disability.
- What are the legal obligations of public service bodies?
Part 5 of the Disability Act 2005 sets out the legal obligations of public service bodies employing people with disabilities.
Public service bodies are required to:
- Promote and support the employment of people with disabilities. Section 47 (1) (a) of the Disability Act requires public bodies, in so far as practicable, to take all reasonable measures to promote and support employment by them of people with disabilities.
- Comply with any Statutory Code of Practice. No statutory Code of Practice has yet been made. The Civil Service has a non-statutory Code of Practice.
- Employ people with disabilities to number at least 3% of the workforce.
- Report on compliance with these obligations. Public bodies must report to statutory Monitoring Committees in their parent department every year by 31 March. For civil servants, the report is to the Department of Finance Monitoring Committee.
Note: To report on compliance with the 3% target, public bodies need to know how many of the staff they employ have a disability. The Disability Act 2005 definition (given above) is the working definition to decide whether or not an employee is considered to have a disability.
- How can I make my Premises Accessible?
There are a number of options that you can consider for making the premises accessible on a general level or in response to a reasonable accommodation request from an employee (see separate section on Reasonable Accommodation).
These options range from implementing policies that ensure that walkways and open areas are kept free from clutter to enable easy access for wheelchair users, to using large-scale print on posters and notices to help visually impaired people, to structural accommodations such as ramps, designated parking areas and lifts.
- Under Human Rights, is the right to work the same for disabled people?
Yes. You cannot discriminate based on disability grounds, but you are not obliged to employ someone who cannot do the job properly. However, if a person with a disability would be capable of doing the job if reasonable accommodation were provided, and providing the cost is reasonable for you, there should be scope for accommodating the person.
- When should an individual with a disability request a reasonable accommodation?
An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. As a general rule the request should be made when they know that there is (or may be) a workplace barrier that is (or will) impede them, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment.
- How must an individual request a reasonable accommodation?
At a time of their choosing, individuals should let the employer know that an adjustment at work is needed for a reason related to a disability (see section on disclosure). The request need not refer to the employment equality legislation or use the term ‘reasonable accommodation’. A request may be made verbally or in writing.
- What must an employer do after receiving a request for reasonable accommodation?
If the need for accommodation is not obvious, once the disability has been disclosed, the employer may ask the individual for related documentation, so that any reasonable accommodation required can be agreed by all concerned. All accommodation requests must be based on a clear and legitimate work-related requirement.
An employer cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. Nor can an employer ask for validating documentation when both the disability and the need for reasonable accommodation are obvious. It may be necessary to research the accommodation options available.
- Must the employer provide the accommodation that the individual requests?
A sensible, reasonable and objective approach to this situation should be adopted. An employee looking for particular accommodations should justify their choice and as ‘experts’, their views should be taken into account by the employer. The employer may offer alternative suggestions for accommodations to remove the workplace barrier. Where there are a number of options, the employer may choose among accommodations as long as the chosen accommodation is effective in removing the workplace barrier and this is accepted by the employee concerned.
Where there is doubt, a trial arrangement needs to be considered. If there are two possible accommodations, and one costs more, or is more difficult to provide, the employer may choose the one that is less expensive or easier to provide, as long as it is effective.
- An employee who has a disability has reasonable accommodations but they do not want to disclose their disability to their colleagues. May I tell other employees that someone is receiving an accommodation?
An employer may respond to a question about why a co-worker is receiving different or special treatment by highlighting the policy of assisting any employee who encounters difficulties in the workplace. The employer may also find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that their privacy would similarly be respected if they were experiencing difficulties for whatever reason.
- Does an employer have to provide a reasonable accommodation to enable an employee with a disability to have equal access to information communicated in the workplace to able-bodied employees?
Yes. Employers must ensure that employees with disabilities have access to and understand information that is provided to comparable employees without disabilities. Access to such information needs to take account of any communication/comprehension difficulties an individual may have.
- Does the employer's obligation cease once a reasonable accommodation has been made?
The duty to provide reasonable accommodation is ongoing during the employment of a person with a disability.