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Employment Equality Acts, 1998-2011
• Section 16(1) - The Acts do not require any person to
• Recruit;
• Promote;
• Retain; or
• Provide training/experience to
any person if the individual is not (or as the case may be, is no
longer), fully competent and available to undertake, and fully
capable of undertaking, the duties attached to that position, having
regard to the conditions under which those duties are, or may be
required to be performed….
BUT………
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Employment Equality Acts, 1998-2011
• Section 16(3) of the Acts provides that “a person who has a disability
is fully competent to undertake and fully capable of undertaking,
any duties if the person would be so fully competent and capable on
reasonable accommodation being provided by the person’s
employer”.
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Employment Equality Acts, 1998-2011
• An employer is obliged to provide reasonable accommodation to
enable a person who has a disability –
• To have access to employment;
• To participate or advance in employment; or
• To undergo training
Unless the reasonable accommodation (appropriate measures)
would impose a disproportionate burden on the employer.
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Disproportionate Burden
In determining whether the measures would impose a disproportionate
burden, the following factors are taken into account
• the financial and other costs entailed,
• the scale and financial resources of the employer's business, and
• the possibility of obtaining public funding or other assistance.
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Reasonable Accommodation
• There is no list!
• The Acts provide that reasonable accommodation means effective
and practical measures which can include
• the adaptation of premises and equipment;
• the adaptation of patterns of working time;
• the distribution of tasks;
• the provision of training;
• the integration of resources…..
• BUT…….does not include any treatment, facility or thing that a
person might ordinarily or reasonably provide for himself or herself.
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Reasonable Accommodation cont.
Humphries V Westwood Fitness Club [2004] ELR 296
(1) Assessment of the factual position
• Medical evidence;
• Ergonomic;
• Occupational.
(2) Reasonable Accommodation
• Consultation
If either (1) or (2) above is absent, it would be very difficult for an
employer to defend a bona fide case of discrimination.
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Reasonable Accommodation cont.
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Disability Accommodation
Dyslexia Providing extra time for assessment for promotion
Alcoholic Provide time off to attend counselling
Back Pain/Whiplash Phased return to work
Blindness Change of working hours to get bus to work and avoid travelling home at night time
Anorexia Time off for treatment
Conflicting Medical Reports
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Is there a need to dismiss?
Size of employer could have an impact -
e.g. Google vs Avril Daly Limited
McGrane v The Mater Private Nursing Home
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Test – show dismissal was fair
Bolger v Showerings (Ireland) Limited
1. It was the ill-health which was the reason for the
dismissal;
2. The reason was substantial;
3. That the employee received fair notice that the question
of his dismissal for incapacity was being considered;
and
4. That the employee was afforded an opportunity of being
heard.
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Follow a checklist
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What to consider before terminating an employee
on long term sick leave
Prior Warnings of possible termination
Give the employee an opportunity to participate in the
decision making process that leads to the dismissal -
Failure to consult could be fatal
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Behave fairly and reasonably
Kevin Humphreys v Tesco Ireland T/A Tesco
Drogheda – both employer and employee must act
reasonably in the lead up to termination
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If in doubt…………..
1. Meeting
2. Meeting
3. Meeting
4. Meeting
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Making the decision to dismiss
How will the process affect you as an employer?
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Practical things to think about as an employer
• Golden handshakes
• Medical fees
• There’s no quick fix
• Management Time
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