Richard Grogan: What’s a disability for the needs of the Employment Act 1998 as amended?

Richard Grogan: What is a disability under the Employment Act 1998, as amended?

Published on June 17, 2020

Richard Grogan

Labor law attorney Richard Grogan from Richard Grogan & Associates investigates a recent case of disability discrimination at work.

The question of what constitutes a disability under the Employment Equality Act 1998, as amended, was discussed extensively in Case ADJ-00016629.

The definition of a disability is in Section 2 (1) of the Act as follows:

1. The total or partial absence of a person’s physical or mental functions, including the absence of any part of a person’s body,
2. The presence in the body of organisms that cause, or are likely to cause, chronic illness or disease,
3. The malfunction, malformation, or disfigurement of any part of a person’s body,
4. A condition or malfunction that causes a person to learn differently than a person without the condition or malfunction, or
5. A condition, disease, or illness that affects a person’s thought processes, perception of reality, emotions, or judgment, or leads to disordered behavior, and includes a disability that is present or that previously existed but no longer exists.
   that may exist in the future or that are ascribed to a person

As pointed out in this case, the definition of disability has historically been interpreted broadly by the courts of both this country and the European Court of Justice (ECJ).

The definition of a disability in our labor law is broader than in Directive 2000/78 / EC, which the Adjudication Officer referred to.

The Adjudication Officer referred to the cases of HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening C-335/11 and C-337/11, in which it was stated that “the concept of a disability” in the Directive should be interpreted as a condition Caused by a disease that has been medically diagnosed as curable or incurable, if this disease brings a limitation with it, which can be traced back in particular to physical, mental or psychological impairments, which in interaction with various obstacles the unrestricted and effective participation of a person concerned in Can hinder working life on an equal basis with other workers and the restriction is a long-term one.

In this particular case, it was not disputed that the employee had problems with her voice, which at one point made her silent or speechless. The adjudication officer believed that the employee was originally diagnosed with mucosal irregularities on both vocal cords, but that no surgery was required and that her voice should be rested to allow early recovery. The adjudication officer found that the employee had not fully recovered. The adjudication officer was convinced that the employee had a disability.

In that case, the adjudication officer then checked to see if the employer had taken the appropriate action under Section 16 of the Act. In this case, the Adjudication Officer believed that the employer had failed to meet its obligations to provide reasonable accommodation.

This case is important for practitioners, employers and employees for two reasons. First, the law is detailed. Second, it affirms that even if a person has a disability and the employer makes reasonable provision to take this into account, an employee has no claim to be won.