Equality in the workplace

Transcription

1 Equality in the workplace Sinéad O Brien Equality Authority 16 December 2013

2 Introduction Role of the Equality Authority Legal framework Application of the EEA and ESA The 9 grounds and discrimination Disability discrimination Reasonable accommodation Case law Taking a claim

3 Role of the Equality Authority Independent body set up under the Employment Equality Act 1998 Elimination of discrimination on 9 grounds Promote equality of opportunity Information service Legal advice and representation Review and monitor

4 Equality Authority and See Change

5 Legislative framework Employment Equality Acts ( EEA ) Equal Status Acts ( ESA ) EU directives UN Convention on the Rights of People with Disabilities

6 Application of the EEA and ESA EEA Access to employment Conditions of employment Promotion Training ESA Provision of goods, facilities & services to the public Free or sold, hired or exchanged Access to and use of service

7 The 9 grounds 1. Gender 2. Disability 3. Civil Status 4. Membership of the Traveller Community 5. Family Status 6. Sexual Orientation 7. Religion 8. Age 9. Race

8 Types of discrimination Direct discrimination (treated less favourably specifically on one of the discriminatory grounds) Indirect discrimination (not explicitly on account of a discriminatory reason but because of a practice or requirement which they find harder to satisfy) Discrimination by association

9 Mental health and equality Definition of disability Employment Equality Acts

10 S2 of the EEA disability means- (a) the total or partial absence of a person s bodily or mental functions, including the absence of a part of a person s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person s body,

11 S2 of the EEA (cont) (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) 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 present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person

12 Disability discrimination Section 6(1) and (2)(g) of the EEA Disability discrimination occurs where one person is treated less favorably than another person is, has been or would be treated on the disability ground i.e., where the other person is without a disability or is a person with a different disability.

13 Reasonable accommodation Disability ground

14 Reasonable accommodation Council Directive 2000/78/EC known as the Framework Directive introduced a freestanding mandatory obligation to provide reasonable accommodation known as appropriate measures unless such measures would impose a disproportionate burden on employers.

15 Irish interpretation of framework directive Section 16(1) of the EEA provides that: an employer is not required to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position if that person is not fully competent and available to undertake and fully capable of undertaking the duties attached to the position.

16 This provision must be considered in the context of reasonable accommodation provision in section 16(3). The interrelationship between 16(1) and 16(3) does not appear to reflect the stand alone reasonable accommodation obligation in the Directive. Section 16(1) can provide a complete defence to employers but it must be considered in light of the reasonable accommodation provisions.

17 S16(3) of the EEA S16(3)(a) of the EEA provides: For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as appropriate measures ) being provided by the person s employer.

18 S16(3) of the EEA S16(3)(c) of the EEA provides: In determining whether the measures would impose such a burden account shall be taken, in particular, of- (i) the financial and other costs entailed (ii) the scale and financial resources of the employer s business, and (iii) the possibility of obtaining public funding or other assistance

19 Case law Humphrey s v Westwood Fitness Club Determination No. EED037 Seminal case The Labour Court and confirmed in the Circuit Court Child care worker Anorexia and bulimia disability Prima facie case of discrimination Did the provisions of section 16 apply?

20 Humprey s (cont) The Labour Court confirmed that section 16(1) can provide a complete defence if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable within the meaning of the section, of performing the duties for which they are employed. However, prior to coming to that view the employer must make enquiries so as to establish fully the factual position in relation to the employee s capacity.

21 Humprey s (cont) Nature and extend of enquiries depend on the circumstances Employee must be given fair notice that dismissal for incapacity is being considered In this case no medical or psychiatric advice or risk assessment undertaken Labour Court sets down a two staged test

22 Humprey s (cont) Humprey s 2 stage test 1. Establish the factual position concerning the employee s capability including the degree of impairment arising from the disability and its likely duration 2. Consider what if any special treatment or facilities may be available by which the employee can become fully capable

23 Humprey s (cont) The cost of any special treatment must be considered What constitutes nominal cost will depend on the size of the organisation and its financial resources S16(3)(b&c) disproportionate burden Financial and other costs entailed Scale and financial resources of the employer s business Possibility of obtaining public funding

24 Humprey s (cont) Complainant succeeded in the Labour Court Circuit Court confirmed the Labour Court decision Dunne J. in the Circuit Court stated that there is a legal obligation under the EEA for an employer to take advice from either the complainant s own doctor or an independent doctor where there are concerns in relation to the health of a worker This went further than the Labour Court who said employer can look at the medical evidence available either from employee s doctors or obtained independently

25 Case law (2) O v A Named Company 2005 E.L.R. 113 Reasonable accomodation Employee experienced anxiety and depression Refused to return to work on a phased basis following a period of sick leave Company argued that it was not feasible to allow phased work due to the nature of the organisation However, evidence that a former employee allowed time off on a daily basis to attend treatment for his condition

26 Case law (3) An Employee v A Transport Company E Period of sick leave for psychiatric illness Returned to work and accident at work Then made redundant Employers evidence about loss of major contract Fact that employee suffering from a disability not disputed Tribunal found that the Complainant had established a prima facie case by virtue of proximity of the illness and dismissal Claim did not succeed

27 Disclosure No requirement under the EEA to disclose However, difficult for employer to make reasonable accommodation to meet needs if not aware Lack of disclosure does not necessarily provide a defence to an employer in relation to a discrimination claim or in relation to a failure to provide reasonable accommodation Data Protection Commissioner s office case study 11/2012 sensitive personal data General practice of requiring all employees to specify nature of condition does give rise to concerns

28 Taking a case Time limits 6 months / 12 months (reasonable cause) Mediation Burden of proof Awards Appeals

29 Conclusion