Richard Grogan: Short-term illnesses do not amount to a disability under discrimination law



Richard Grogan

Employment law solicitor Richard Grogan of Richard Grogan & Associates clarifies some key points on the law of disability discrimination.

The issue of disability discrimination arose in a case of Houses of the Oireachtas and Thomas Hickey EDA1918, where the Labour Court addressed this issue.

The Labour Court quoted section 2 of the Employment Equality Act, which sets out that a disability means:

  1. the total or partial absence of a person’s bodily or mental functions, including the absence of any part of a person’s body,
  2. the presence in the body of organisms causing, or likely to cause chronic death or illness,
  3. the malfunction, malformation or disfigurement of part of a person’s body,
  4. a condition or malfunction which results in a person learning differently from a person without the condition or malfunction,
  5. a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement, or which results in disturbed behaviour

and shall be taken to include a disability which exists at presents, or which previously existed but no longer exists or which may exist in the future or which is imputed to a person.

The Court quoted the case of Chacon Navas –v- Eurest Case C-13-05 and Jette Ring –v- Dansk Case C-355-11. The Court quoted the second case, where the CJEU observed, at paragraphs 38-42 and at paragraph 38, that the concept of “disability” must be understood as referring to a limitation which results in particular from physical, mental of psychological impairments which in interaction with various barriers may hinder the full and effective participation of a person concerned in professional life on an equal basis with other workers.

In paragraph 39, in addition, it follows from the second paragraph of Article 1 of the UN convention on the physical, mental or psychological impairments, that it must be long-term.

In paragraph 41, it must therefore be concluded that if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which interaction with various barriers may hinder the full and effective participation of a person concerning professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be converted by the concept of “disability” within the meaning of Directive 2000-78.

In paragraph 42, on the other hand, an illness not entailing such a limitation is not covered by the concept of “discrimination” within the meaning of Directive 2007-78. Illness as such cannot be regarded as a ground in addition to those in relation to which Directive 2000-78 prohibits discrimination.

The Court pointed out that they are bound by the decision of the European Court of Justice and held that a relatively short illness, such as that experienced by the complainant in this case, which was a “chest infection”, does not amount to a disability.

The Labour Court pointed out that no medical report was opened to the Court to establish clearly the extent and duration of the illness or that the illness was a chronic illness within the meaning of the definition of “disability” for the purposes of the Act.

The Labour Court in this case has very clearly set out the law on this and it is a useful restatement of the law for colleagues.

  • Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.


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