Richard Grogan: What is a disability for the purposes of the Employment Act 1998 as amended?
Employment law solicitor Richard Grogan of Richard Grogan & Associates examines a recent case concerning disability discrimination at work.
The issue of what constitutes a disability for the purposes of the Employment Equality Act 1998 as amended was addressed in some detail in case ADJ-00016629.
The definition of a disability is in section 2 (1) of the Act being:
- The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
- The presence in the body of organisms causing, or likely to cause, chronic disease or illness,
- The malfunction, malformation or disfigurement of a part of a person’s body,
- A condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
- A condition, illness or disease which effects 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 present, or which previously existed but no longer exists,
which may exist in the future or which is imputed to a person
As pointed out in this case, the definition of a disability has been interpreted in a broad manner in the past by the courts both within this country and the European Court of Justice (CJEU).
The definition of a disability in our employment law is wider than in Directive 2000/78/EC, as pointed out by the Adjudication Officer.
The Adjudication Officer pointed out the cases of HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening C-335/11 and C-337/11 where it was held that “the concept of a disability” in the Directive must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or 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 and the limitation is a long-term one.
In this particular case, what was not in dispute was that the employee had issues with her voice which rendered her at a time as mute or without speech. The Adjudication Officer was satisfied that the employee was originally diagnosed with mucosal irregularities on both vocal cords but that they did not require surgery and to allow early recovery her voice should be rested. The Adjudication Officer noted that the employee had not fully recovered. The Adjudication Officer was satisfied that the employee had a disability.
In this case the Adjudication Officer then looked to see had the employer, in accordance with section 16 of the Act, had taken the appropriate measures. In this case the Adjudication Officer was of the view that the employer did not fail in its obligations to provide reasonable accommodation.
This case is important for practitioners, employers and employees for two reasons. Firstly, it sets out the law in some detail. Secondly, it confirms that even if a person has a disability ,if the employer provides reasonable accommodation to take account of same, an employee will not have a claim which can be won.