Employers are required under employment equality legislation to consider whether making reasonable accommodations to either the role or the workplace would allow disabled employees to take up employment. While there may be some initial disruption to the workplace, the benefits of employing a diverse team make the extra effort all worthwhile.
Reasonable accommodation does not mean employers are obliged to recruit, promote or provide training to a disabled person who is not capable of doing the job. The principle of reasonable accommodation prohibits employers from deciding that a person with a disability is unable to do a particular job without first considering whether certain measures could be adopted to allow the person to carry out the job.
The following advice will outline how the principle of reasonable accommodation affects employers.
When does the employer’s duty to consider making reasonable accommodations arise?
The Employment Equality Acts 1998 – 2015 protect people against discrimination on the ground of disability during recruitment and employment. If a disabled job applicant or employee applies for a certain role, you should consider whether making adjustments either to the workplace or the role will allow the candidate to do the job.
Disability has been widely interpreted under the legislation and includes the following:
- the total or partial absence of a person’s bodily or mental functions
- chronic disease or illness
- the malfunction, malformation or disfigurement of a part of a person’s body
- a condition that results in a person learning differently from a person without that condition
- a condition that affects a person’s thought processes, perception of reality, emotions or judgments, or which results in disturbed behaviour
Disability also includes people who have long-term disabling conditions which may deteriorate over time, as well as people who used to have a disability but do not have it any longer.
Reasonable accommodations for new employees
It is important that interview candidates are not asked about their mental health or disabilities during the recruitment process. Job applicants will be entitled to make a discrimination claim if it can be inferred that a recruitment decision was made based on the candidate’s disability.
Once a candidate has been offered the position, it is appropriate to enquire if s/he needs any reasonable accommodations to the workplace or the role to be made.
You must do all that is reasonable to accommodate the needs of a person with a disability unless you can show that there is a cost to your business other than a nominal cost.
Reasonable accommodation does not necessarily mean you will need to make alterations to your facilities or workplace. Permitting flexible working hours, organising work and workspace in a different way, or using specific technology would all constitute reasonable accommodation. Providing reasonable accommodation need not be an onerous task if you are prepared to use imagination and flexibility.
Reasonable accommodation for employees who become disabled
Existing employees may develop a disability while in your employment. If the disabled employee intends to continue working, you will need to explore if reasonable accommodations would allow the employee to return to work.
Supreme Court decision pending
The extent of what reasonable accommodations need to be made by employers to facilitate employees who develop disabilities is set to be reviewed by the Supreme Court in the case of Nano Nagle School v Marie Daly.
The decision of the Court of Appeal found that employers should consider reallocating tasks only where the tasks are non-essential to the role. The decision implies that if the employee is unable to undertake the essential tasks of the role due to their disability, this would constitute reasonable grounds for termination. The position remains unclear until the decision of the Supreme Court is handed down.
Examples of reasonable accommodation
Making reasonable accommodations tends to conjure up thoughts of expensive redesigns of the workplace. In most scenarios, providing reasonable accommodation will not cost anything at all other than affording some flexibility to employees.
For instance, examples of how to reasonably accommodate disabled employees could include:
- adapting tools, workstations or equipment
- providing a ground floor workspace to a disabled employee
- providing training
- providing flexible working hours or work from home opportunities
- rearranging tasks to allow the disabled employee to perform duties they are capable of doing.
You will not be required to take appropriate measures to reasonably accommodate disabled employees if to do so would place a disproportionate burden on your business. When determining whether or not an appropriate adjustment represents a disproportionate burden, the following considerations will be taken into account:
- the financial costs on your business
- the costs on employee time, productivity or disruption involved
- the size and financial resources of your business.
You may also be in a position to avail of public funding, grants or other assistance which is available in certain circumstances. There is a variety of grants available to help employers provide appropriate measures. The Employers Disability Information Service provides further information on how to successfully employ people with disabilities.
If you decide not to provide an appropriate measure, it will be your responsibility to establish that the provision of the appropriate measure would be a disproportionate burden.
What if the employee doesn’t mention their disability?
If the employee doesn’t notify you that s/he has a disability and there are no visible indications of a disability, you would have good grounds to defend any claim of discrimination.