1. Introduction

Disability discrimination is one of the most frequently litigated grounds under the Employment Equality Acts 1998 to 2021. Section 2 of the 1998 Acts defines disability broadly to include physical, mental, intellectual and sensory impairments, both present and historical, including conditions in remission.

This article sets out the framework for disability discrimination claims, the substantive duty of reasonable accommodation under Section 16 of the 1998 Acts, the burden of proof under Section 85A, and the typical fact patterns that arise before the WRC.

2. Legislation and Case Law

Section 6(1) of the Employment Equality Act 1998 (as amended) prohibits discrimination on any of the nine protected grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. Section 6(2) of the Act sets out the protected grounds in full. Section 8 of the Act applies the prohibition to all aspects of the employment relationship including access to employment, conditions of employment, training, promotion and dismissal. Section 14A of the Act prohibits harassment and sexual harassment on any protected ground. Section 74 of the Act prohibits victimisation. Section 85A(1) provides that where, in any proceedings, facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination, it is for the respondent to prove the contrary. The leading authority on Section 85A is the Labour Court’s determination in Southern Health Board v Mitchell [2001] ELR 201, in which the Court held that the complainant must, in the first instance, establish a prima facie case of discrimination before the burden shifts to the respondent.

Section 2 of the 1998 Acts defines ‘disability’ to mean the total or partial absence of a person’s bodily or mental functions, the presence in the body of organisms causing chronic disease or illness, the malfunction or disfigurement of part of the body, conditions affecting learning, and conditions affecting thought processes, perception of reality, emotions or judgement.

Section 16 of the 1998 Acts imposes an obligation on the employer to provide reasonable accommodation to enable a person with a disability to participate in employment. The duty has been interpreted by the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 as a substantive duty requiring the employer to engage with the affected employee, to consider the available accommodations, and to implement those that do not impose a disproportionate burden.

The interaction with capability dismissals under the Unfair Dismissals Acts is significant. Where an employer dismisses an employee on capability grounds in circumstances where the underlying condition is a disability, the employer must demonstrate compliance with both Section 6(7) of the 1977 Acts (procedural fairness) and Section 16 of the 1998 Acts (reasonable accommodation). A failure on either front exposes the employer to dual liability. 

3. Decision

Disability discrimination claims typically engage three issues: whether the complainant has a disability within the meaning of the Acts; whether less favourable treatment occurred by reference to the disability; and whether the employer discharged the reasonable accommodation duty.

The first question is rarely contentious in practice. The statutory definition is broad and covers most medical conditions of any significance. Conditions ranging from physical injury to depression to autism spectrum conditions to chronic pain have been held to constitute disabilities for the purposes of the Acts.

The second question — less favourable treatment — is where the burden of proof under Section 85A operates. The complainant must establish a prima facie case: facts from which an inference of discrimination may be drawn. The respondent must then prove that the treatment was not discriminatory.

The third question — reasonable accommodation — has become the substantive battleground in most disability cases. The employer must demonstrate active engagement with the question, including occupational health input, consultation with the employee, consideration of specific accommodations proposed, and reasoned decisions on what is and is not practicable.

4. Takeaway

Disability discrimination claims under the 1998 Acts require active engagement by the employer with the reasonable accommodation duty. A passive approach, or one that relies on bald assertions that accommodation is not possible, will not satisfy the Section 16 duty.

For employers, the practical advice is to put in place a clear process for managing disability-related issues: occupational health referral on a current basis, structured meetings with the affected employee, identification of specific accommodations under consideration, and reasoned decisions documented in writing.

Employers should also be alert to the interaction with capability dismissals. Where dismissal is in contemplation in circumstances where the underlying condition is or may be a disability, the reasonable accommodation duty must be discharged before dismissal can fairly proceed.

For employees, the practical advice is to put the employer on notice of any disability and to engage constructively with the reasonable accommodation process. Proposals for specific accommodations should be advanced in writing. Failure by the employer to engage with such proposals is a strong evidential basis for a subsequent complaint.

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie