Celebrating disability Pride Month: Spotlight on Reasonable Accommodation

First published by Legal Island on 2 July 2024.

What is Reasonable Accommodation and why is it so important?

Section 16 of the Employment Equality Acts 1998-2015 (the Act) forms the bedrock of the duty to provide reasonable accommodation in Ireland. Put simply, section 16 places a duty on employers to provide “appropriate measures” to enable an employee to carry out their employment duties, provided the employee will be “fully competent” once “appropriate measures” have been provided, and such measures do not result in a “disproportionate burden” for the employer. The provision places a positive duty on employers to place people with disabilities on an equal footing with their able-bodied counterparts in accessing employment.

13% of the working age population have a disability in Ireland, and many people may temporarily acquire a disability throughout their career, meaning that Reasonable Accommodation is an important consideration for all employers.

Ireland’s employment rate of people with disabilities is the lowest in the EU at 32.6%, and the Disability Employment Gap (the difference in percentage points between the employment rates of persons with and without disabilities) is the widest in the EU at 37%. Reasonable accommodation enables people with disabilities to enter and remain in work, and as such, plays an important role in addressing the disability employment gap.

How do employers know if an employee is ‘fully competent’?

The Act addresses the competency of employees with disabilities in the context of the duty to provide reasonable accommodation as follows:

• Section 16(1) confirms that there is no obligation on an employer to recruit or retain an individual with a disability in employment if they are not fully competent to carry out the employment duties.
• Section 16(3)(a) confirms that a person is regarded as “fully competent” upon reasonable accommodation. This means that an employer cannot determine that a candidate is incompetent to do a job before carrying out an assessment in relation to reasonable accommodation. By way of an example, a candidate who is vision impaired and who is suitably qualified for a position, may be unable to carry out the employment duties without assistive technology such as magnification or speech software. However, once the assistive technology has been provided by the employer by way of reasonable accommodation, the individual will be fully competent to carry out the employment duties.
• Section 16(3)(b) confirms that an employer must provide appropriate measures to enable a person with a disability to access, participate and advance in employment, unless the measures would impose a disproportionate burden on the employer.

How can employers assess whether a request for Reasonable Accommodation constitutes a disproportionate burden?

Section 16 of the Act provides that in determining whether the ‘financial and other costs entailed’ give rise to a disproportionate burden, there must be regard to ‘the scale and financial resources of the employer’s business’. The section makes it clear that larger and more profitable employers will find it more difficult to prove that the cost of providing reasonable accommodation would cause a disproportionate burden. A higher expenditure is expected of public bodies, and in respect of long-term employees of an organisation.

The ‘possibility of obtaining public funding or other assistance’ is the final factor for consideration under section 16 (4)(c). Public funding is provided by the Department of Social Protection to employers through the Reasonable Accommodation Fund (RAF) in the areas of workplace equipment adaptation; interpreting services at interview stage; personal reading services; and employee retention. A Disability Awareness Support Scheme is also available which offers funding to private sector employers to provide Disability Awareness Training for staff who work with a colleague who has a disability. You can read more about the available public funding here.

What are some practical examples of Reasonable Accommodation?

Section 16(4) defines the concept of “appropriate measures” and provides a non-exhaustive list of examples of the types of “effective and practical” measures an employer may provide to adapt the employer’s place of business to the disability concerned. This includes the adaptation of premises and equipment; patterns of working time; distribution of tasks; or the provision of training or integration resources.

The section also clarifies that devices an individual would normally provide for themselves (such as a hearing aid for a person who is deaf or hard of hearing, for example, or an iPhone with Voice Over and Zoom features enabled for a person who is blind or vision impaired), are not covered.

Assistive technology, while not specifically included in the legislation, is becoming more common as a form of reasonable accommodation for employees with disabilities in the workplace.

What do the courts say?

The landmark Supreme Court decision on the topic of reasonable accommodation, Nano Nagle School v Marie Daly[1], helps to clarify the law on reasonable accommodation and has frequently been cited by the Workplace Relations Commission (WRC) and Labour Court. As outlined in our previous insight, in this decision the Supreme Court:

• Held that no distinction exists between the terms “Core duties” and “tasks” attached to a given role under section 16 of the Act, and that therefore “there is no reason, in principle, why certain work duties cannot be removed or ‘“stripped out’” by way of reasonable accommodation.
• Noted that the duty to provide reasonable accommodation is not “infinite, or at large”: “It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a disproportionate burden”.
• Explained that ‘full competence’ of an employee under section 16 of the Act is to be assessed in the context of there having been reasonable accommodation and appropriate measures provided, rather than assessing the full competence of an employee in isolation.
• Clarified that there is no requirement to consult with the employee under section 16 of the Act but recognised that a prudent employer will endeavour to engage and consult with an employee as part of their duty to provide reasonable accommodation.

This decision has been recognised as a paradigm shift in the way disability is to be viewed in European and Irish law, solidifying the rights of persons with disabilities, who wish to enter or remain in work.

Key takeaways for employers

With disability Pride Month as the backdrop to the consideration of Reasonable Accommodation under this article, the following are the “key takeaways” for employers:

• Reasonable Accommodation is the primary means of enabling people with disabilities to access and remain in employment.
• With assistive technology becoming more widely available, and with the variety of “effective and practical measures” which can assist a person with a disability to carry out their employment duties, reasonable accommodation may be less costly for employers than expected.
• Employers may wish to consider the availability of public funding under the RAF and the Disability Awareness Support Scheme to assist in discharging their duty to provide reasonable accommodation.

Conclusion

Section 16 of the Act and the Supreme Court judgment in Nano Nagle remain the corner stone of the duty to provide reasonable accommodation under Irish employment equality law and prudent employers will be very familiar with this legal framework. With the focus this month on pride in disability culture, it is timely for employers to look beyond compliance with the Act, and towards reasonable accommodation as the gateway to employment equality for people with disabilities.

For further information in relation to this topic, please contact Caoimhe Grogan Solicitor, Triona Sugrue, Knowledge Consultant, or any member of ALG’s Employment Practice Group.

Date published: 11 July 2024