School of Law Reasonable Accommodation Employment Lecturer: Shivaun Quinlivan Centre for Disability Law and Policy National University of Ireland Galway

Defining Disability – some considerations Social Model of Disability Difficult to define as not a homogenous group Purpose of legislation –Conferring social benefit –Anti-discrimination Definition does not require a thresh-hold of severity Centre for Disability Law and Policy

Defining Disability Three approaches to defining disability: –Non-definitional –Restrictive –Purposive School Institute Name to go here

FED – Non definitional Prohibits discrimination on the “grounds of disability” The purpose of the Directive is to lay down a general framework for combating discrimination on the grounds of disability as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment. School Institute Name to go here

Chacon Navas v Eurest Colectividades Disability for the purposes of the Directive: –43 … a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life. –44 … nothing in the Directive ‘to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness –45 … for any “limitation” to be regarded as a “disability”, “it must be probable that it will last for a long time”

But … UN Convention on the Rights of Persons with Disabilities –“the primacy of international agreements concluded by the European Union over instruments of secondary law means that those instruments must as far as possible be interpreted in a manner that is consistent with those agreements.” School Institute Name to go here

CRPD - Definition “a soft threshold definition in the form of guidance which is open-ended and inclusive” –Disability an evolving concept –Article 1 of the CRPD Social model Long term Thus there is a problem with Chácon Navas School Institute Name to go here

CRPD as an agent for change? Joined cases - Cases C-335/11 and C-337/11 - Jette Ring Case and Lone Skouboe Werge Case Advocate General: … agreements concluded by the Union are binding upon the institutions of the Union and the Member States. International agreements concluded by the Union are an integral part of the legal order …, an interpretation of the provisions of EU law must be derived, if possible, which is consistent with the public law obligations of the Union. School Institute Name to go here

Impact of CRPD Jette Ring v Dansk almennyttigt Boligselskab 201 –Refers to the UNCRPD, broadens the definition of disability, can include sickness, also reference to long-term nature of the disability. See also Coleman - (C-203/06) [2008] ECR I-05603, [2008] I.R.L.R School Institute Name to go here

Article 5 - FED In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned. School Institute Name to go here

See following recitals to FED: 16 – RA plays an important role in combatting discrimination. 17 – Must be able to perform essential functions of the post with or without reasonable accommodation 20 – appropriate measures, adapting premises, equipment, patterns of work etc 21 – Individual nature of the RA duty, and the measurement of what is a disproportionate burden. School Institute Name to go here

RA – Issues Mandatory nature of the requirement Essential Functions of the Post What are appropriate measures? What is a disproportionate Burden?

Disproportionate Burden the financial and other costs entailed, the scale of the financial resources of the organisation or undertaking in question, and the possibility of obtaining public funding or any other assistance. School Institute Name to go here

Case law examples - Ireland Pre employment – Accessible interview venue required Essential functions – Not necessary to be able to perform minor elements of job. Provision of equipment – Must be appropriate equipment Training – Provision of a job coach for three months Dismissal - must consider reasonable accommodation before dismissal Reasonable – used as a second limiting factor.

Reasonable Accommodation test A Health and Fitness Club v a Worker: Three point test: Factual position concerning employee’s capability, including looking at impairment Consideration of actual accommodations that would assist Employee must be allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. School Institute Name to go here

Netherlands Opinion Additional time but with an additional charge – breach of the requirements Opinion Additional time but no evidence that it would assist – no breach School Institute Name to go here

Centre for Disability Law and Policy Questions?