Disability Pride Month takes place each July across the globe and is an opportunity to promote inclusion and to celebrate pride in disabled culture. While many employers might not yet be familiar with disability Pride Month, it certainly provides a chance to pause and reflect on disability inclusion within our organisations and to consider some of the key legal concepts surrounding the disability ground which form part of the employment equality framework in Ireland.

What is Reasonable Accommodation and why is it so important?

Section 16 of the Employment Equality Act 1998-2015 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 I know if an employee is ‘fully competent’?

• 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 to be “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 now 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 do I know if a request for Reasonable Accommodation constitutes a disproportionate burden?

• Section 16 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 third 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, including 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.

For any further guidance in relation to Reasonable Accommodation or Employment Equality Law more generally, please contact Caoimhe Grogan or a member of the Employment Practice Group.