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Reasonable accommodation in Irish equality law: an incomplete transformation

Published online by Cambridge University Press:  18 September 2020

Lucy-Ann Buckley*
Affiliation:
School of Law, National University of Ireland Galway, Ireland
Shivaun Quinlivan
Affiliation:
School of Law, National University of Ireland Galway, Ireland
*
*Corresponding author email: lucy-ann.buckley@nuigalway.ie

Abstract

The UN Convention on the Rights of Persons with Disabilities is the first international human rights convention to state expressly that discrimination includes the failure to provide reasonable accommodation. The duty has been described as transformative but has also been critiqued for its lack of structural impact. This paper evaluates the transformative potential of the reasonable accommodation duty encompassed by the Convention, and considers how its potential can be realised. It argues that the duty is transformative because of the substantive equality it provides for individuals, and because it requires both active engagement with persons with disabilities and proactive consideration of barriers to inclusion, in multiple contexts. However, it contends that full realisation of the duty's transformative potential depends on appropriate legislative formulation. This may be a problem in dualist states where application of the Convention is not automatic and pre-existing legislation may be perceived as satisfying the obligation. The paper supports this contention with an analysis of Irish law, arguing that the full transformative potential of the reasonable accommodation duty has not yet been achieved in Ireland, and identifying the reasons for this. The paper examines the practical consequences of inadequate implementation and highlights pitfalls and best practice.

Type
Research Article
Copyright
Copyright © The Society of Legal Scholars 2020

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Footnotes

The research assistance of Alison O'Brien is gratefully acknowledged.

References

1 United Nations General Assembly Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, opened for signature 30 March 2007, entered into force 3 May 2008) A/RES/61/06.

2 Eg UN Committee on Economic, Social and Cultural Rights (CESCR) General Comment No 5: Persons with Disabilities, 9 December 1994, E/1995/22.

3 Glor v Switzerland Application No 13444/04 (ECtHR, 30 April 2009).

4 Mental Disability Advocacy Centre v Bulgaria (2008) Complaint No 41/2007.

5 KA Loper ‘Equality law and inclusion in education: recommendations for legal reform’ (SSRN Scholarly Paper 2010) [2] ssrn.com/abstract=1712710, accessed 14 May 2020.

6 Kayess, R and French, POut of the darkness into light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 HRLR 1Google Scholar at 27.

7 Day, S and Brodsky, GThe duty to accommodate: who will benefit?’ (1996) 75 Canadian Bar Review 433Google Scholar.

8 Committee on the Rights of Persons with Disabilities General Comment No 6 (2018), Article 5: Equality and Non-discrimination, Women and Girls with Disabilities, 9 March 2018, CRPD/C/GC/6.

9 Ibid, at [7].

10 CRPD, Art 1.

11 Office of the High Commissioner for Human Rights ‘Equality and Non-Discrimination under Article 5 of the Convention on the Rights of Persons with Disabilities: Report of the Office of the United Nations High Commissioner for Human Rights’ (A/HRC/34/26, 9 December 2016) [76] (OHCHR Report).

12 Ibid, at [23].

13 General Comment No 6, above n 8, at [11]; Degener, TA human rights model of disability’ in Blanck, P and Flynn, E (eds) Routledge Handbook of Disability Law and Human Rights (Oxford: Routledge, 2017)Google Scholar.

14 Fredman, S Discrimination Law (Oxford: Oxford University Press, 2nd edn, 2011) p 25Google Scholar.

15 General Comment No 6, above n 8, at [11].

16 CRPD, Arts 3–9.

17 Quinlivan, SThe United Nations Convention on the Rights of Persons with Disabilities: an introduction’ (2012) 13 ERA Forum 71CrossRefGoogle Scholar.

18 References to the principle of equality and/or non discrimination are also made in CRPD, Arts 3, 4, 6, 7, 8 and 9.

19 OHCHR Report, above n 11, at [5].

20 Quinn, GA short guide to the United Nations Convention on the Rights of Persons with Disabilities’ (2009) 1 EYDL 89Google Scholar at 100.

21 General Comment No 6, above n 8, at [3].

22 CRPD, Art 5(2).

23 Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Morocco (27 Sept 2017) CRPD/C/MAR.CO1 [12(a)].

24 Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Germany (13 May 2015) CRPD/C/DEU/CO/1 [14(b)]. Similar recommendations have been consistently repeated in other concluding observations, eg Concluding Observations on the Initial Report of Greece (24 Sept 2019) CRPD/C/GRC/CO/1 and Concluding Observations on the Initial Report of India (24 Sept 2019) CRPD/C/IND/CO/1.

25 General Comment No 6, above n 8, at [22].

26 Ibid.

27 OHCHR Report, above n 11, at [64].

28 Mégret, F and Msipa, DGlobal reasonable accommodation: how the Convention on the Rights of Persons with Disabilities changes the way we think about equality’ (2014) 30 South African Journal on Human Rights 252CrossRefGoogle Scholar at 270.

29 CRPD, Art 2.

30 Lawson, AReasonable accommodation in the UN Convention on the Rights of Persons with Disabilities and non-discrimination in employment: rising to the challenges?’ in O'Mahony, C and Quinn, G (eds) Disability Law and Policy: An Analysis of the UN Convention (Dublin: Clarus Press, 2017)Google Scholar.

31 Eg Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321; Fleming v Ireland & Others [2013] IESC 19.

32 CRPD, Art 4(1) includes the duty to take all appropriate legislative measures to implement the convention, including modifying existing laws.

33 Quinlivan, SReasonable accommodation: an integral part of the right to education for persons with disabilities’ in De Beco, G et al. (eds) The Right to Inclusive Education in International Human Rights Law (Cambridge: Cambridge University Press, 2019) p 176Google Scholar.

34 General Comment No 6, above n 8, at [24(b)].

35 UN Committee on the Rights of Persons with Disabilities General Comment No 4 (2016): Article 24: Right to inclusive Education (2 September 2016) CRPD/C/GC/4.

36 Quinlivan, above n 33, p 176.

37 General Comment No 6, above n 8, at [24(b)].

38 OHCHR Report, above n 11, at [40].

39 Lawson, above n 30; Mégret and Msipa, above n 28.

40 OHCHR Report, above n 11, at [40].

41 General Comment No 6, above n 8, at [26].

42 Ibid, at [45].

43 CRPD, Art 2.

44 For further discussion, see Mégret and Msipa, above n 28; Waddington, LWhen it is reasonable for Europeans to be confused: understanding when a disability accommodation is reasonable from a comparative perspective’ (2007–08) 29 Comparative Labour Law & Policy Journal 317Google Scholar.

45 OHCHR Report, above n 11, at [31]; and General Comment No 6, above n 8, at [25(b)].

46 General Comment No 6, above n 8, at [26(d)].

47 Ibid, at [26(e)].

48 Writing in the US context, Schwab and Willborn note that ‘Congress rejected efficiency as the guiding principle for the ADA and… the Act sometimes requires inefficient actions’: Schwab, SJ and Willborn, SLReasonable accommodation of workplace disabilities’ (2003) 44 William & Mary Law Review 1197Google Scholar at 1202–1203.

49 OHCHR Report, above n 11, at [56], see also General Comment No 6, above n 8, at [26(e)].

50 OHCHR Report, above n 11, at [61].

51 General Comment No 6, above n 8, at [26(e)].

52 Ibid, at [26(e)].

53 Waddington, above n 44.

54 UN Committee on the Rights of Persons with Disabilities, ‘Communication No 3/2011’ CRPD/C/7/D/3/2011.

55 General Comment No 6, above n 8, at [25(a)].

56 Day and Brodsky, above n 7, at 435.

57 Ibid.

58 Waddington, L and Hendriks, AThe expanding concept of employment discrimination in Europe: from direct and indirect discrimination to reasonable accommodation discrimination’ (2002) 18 International Journal of Comparative Labour Law and Industrial Relations 403CrossRefGoogle Scholar at 414–415.

59 Rioux, MHTowards a concept of equality of well-being: overcoming the social and legal construction of inequality’ (1994) 7 Canadian Journal of Law & Jurisprudence 127CrossRefGoogle Scholar at 140.

60 Fredman, above n 14, p 218.

61 Mégret, FThe Disabilities Convention: towards a holistic concept of rights’ (2008) 12 International Journal of Human Rights 261CrossRefGoogle Scholar.

62 Rioux, above n 59.

63 Fredman herself argued that ‘at least three’ elements were present: Fredman, above n 14, p 217.

64 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, 27 November 2000, OJ L 303, 02/12/2000 P 0016–0022.

65 HK Danmark, acting on behalf of Jette Ring (Applicant) v Dansk almennyttigt Boligselskab (Respondent) (Case C-335/11 and Case C-337/11) [2013] IRLR 571.

66 Nano Nagle School v Daly [2019] IESC 63 at [23]–[34].

67 Constitution of Ireland, Art 29.4.

68 Re Article 26 of the Constitution and the Employment Equality Bill 1996 [1997] 2 IR 321.

69 Re Article 26 of the Constitution and the Equal Status Bill 1997 [1997] 2 IR 387.

70 Now the Employment Equality Acts 1998–2015.

71 Now the Equal Status Acts 2000–2018.

72 Ireland does not yet have legislation providing for reasonable accommodation in other contexts, notwithstanding the requirements of the CRPD.

73 EEA, s 16(3), as amended by the Equality Act 2004, s 9.

74 The CRPD Committee has called on the EU to extend anti-discrimination law to the provision of goods and services (Concluding Observations on the Initial Report of the European Union (2 October 2015) at [18]–[19]). To date this has not occurred, although the EU has adopted accessibility requirements in relation to products and services (European Accessibility Act, EU Directive 2019/882).

75 The Supreme Court's extremely brief discussion of this point noted that there was no exemption for small firms and that the consideration of ‘financial circumstances’ might require the disclosure of business problems to a third party to establish ‘undue hardship’ ([1997] 2 IR 321 at 368). Arguably, the broader test for disproportionate burden ameliorates these difficulties.

76 Mégret and Msipa, above n 28, at 270.

77 [1997] 2 IR 321 at 368.

78 Equality Act 2004, s 25, amending EEA, s 37(5).

79 Glor v Switzerland, above n 3.

80 ESA, s 4(2).

81 EEA, s 16(4)(a).

82 EEA, s 16(4)(b).

83 EEA, s 16(3)(c).

84 Framework Directive, Art 5.

85 EEA, s 77. The section also provides for claims relating to a breach of an equality clause or an equal pay clause.

86 Complainant v Employer DEC-E2008-068.

87 Smith, O Disability Discrimination Law (Dublin: Round Hall Thomson Reuters, 2010) p 228Google Scholar.

88 Ibid.

89 Ibid.

90 An Employee v A Broadcasting Company EE/2008/359.

91 Mr B v A Metal Processing Company EE/2010/909.

92 Feore v Alzheimer Society of Ireland DEC-2006-101.

93 A Complainant v An Employer DEC-E2008-068.

94 O'Sullivan v Siemens Business Services Ltd DEC-E2006-058.

95 Conlon v Intel Ireland Ltd EE/2011/383.

96 A Worker v A Company EE/2011/795.

97 Mr B v A Metal Processing Company EE/2010/909.

98 Mr L v A Medical Technology Enterprise EE/2011/670.

99 A Medical Secretary v HSE West EE/2009/671.

100 Lesniak v Farringtons Agri Limited (in liquidation) EE/2010/396.

101 A total of 49 out of 82 complaints were successful: National Disability Authority Reasonable Accommodations: Obstacles and Opportunities to the Employment of Persons with a Disability (November 2019) (NDA Reasonable Accommodations) p 7.

102 A Solicitor v A Legal Service ADJ-00011821.

103 A Worker v A Hotel [2008] ELR 73; Mr A v A Government Department DEC-E2008-023.

104 General Comment No 6, above n 8, at [24].

105 A Government Department v An Employee EDA 061/2006.

106 Miaskiewiczm v Tesco Ireland Ltd EE/2011/588.

107 A Medical Secretary v HSE West EE/2009/671. The disproportionate burden defence may not always be that significant in practice: the NDA report found that, of 49 unsuccessful claims for reasonable accommodation, only three failed on the disproportionate burden ground: NDA Reasonable Accommodations, above n 101, p 8. However, the size of the case sample was small (82 cases).

108 A Health and Fitness Club v A Worker EED037 (also known as Humphries v Westwood Fitness Club following the Circuit Court appeal, Humphries v Westwood Fitness Club [2004] 15 ELR 296). The Circuit Court (Dunne J) also found the employer in breach of the EEA due to its inadequate procedures and failure to consider medical advice.

109 A Health and Fitness Club v A Worker EED037.

110 Humphries v Westwood Fitness Club [2004] 15 ELR 296 at 301.

111 Conlon v Intel Ireland Ltd EE/2011/383.

112 Alistair Clews v DSG Retail EE/2011/449.

113 Miaskiewicz v Tesco Ireland Ltd 2014-DEC-E2014-072.

114 Ibid, at [5.3].

115 Ibid.

116 Nano Nagle School v. Daly [2018] IECA 11.

117 Ibid, at [63].

118 Bruton, C and McVeigh, KEffects of the judgment of the Court of Appeal in Nano Nagle v Daly on the duty to provide reasonable accommodation’ (2018) 15(2) Irish Employment Law Journal 36Google Scholar.

119 A Complainant v A Healthcare Company EE/2013/205.

120 NDA Reasonable Accommodations, above n 101, p 8.

121 Ibid.

122 Ibid.

123 Nano Nagle School v Daly [2019] IESC 63. For a commentary on this case see Quinlivan, S and O'Mahony, CThe Irish Supreme Court judgment in Nano Nagle School v Marie Daly: a saga of litigation’ (2019) 70(4) Northern Ireland Legal Quarterly 505CrossRefGoogle Scholar.

124 Nano Nagle School v Daly, ibid, at [104].

125 Ibid, at [105].

126 Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664 at [69].

127 General Comment No 6, above n 8, at [23].

128 This danger was highlighted early on in Quinn, G and Quinlivan, SDisability discrimination: the need to amend the Employment Equality Act 1998 in light of the EU Framework Directive on Employment’ in Costello, C and Barry, E (eds) Equality in Diversity: The New Equality Directives vol 29 (Dublin: Irish Centre for European Law, 2003) p 218Google Scholar.

129 [2019] IESC 63.

130 [2018] IECA 11 at [30]–[33] per Finlay Geoghegan J.

131 Bruton and McVeigh, above n 118.

132 Eg Excellence Ltd v Adam Herzyk EDA1815. The NDA report, which considered 82 recent reasonable accommodation cases, also found that 11 cases failed because the WRC or Labour Court held that the employee would not have been fully competent to undertake the role even with an accommodation (NDA Reasonable Accommodations, above n 101, p 8). However, although the cases were concluded prior to the Supreme Court's decision in Nano Nagle, it is unclear whether the 11 cases identified all occurred after the decision of the Court of Appeal.

133 [2019] IESC 63 at [100]–[101].

134 Ibid, at [101].

135 Ibid, at [102].

136 Ibid.

137 Ibid, at [106].

138 Ibid, at [107].

139 ESA, s 4(1).

140 Connolly v Hughes and Hughes DEC-S2009-064.

141 Quinlivan, SReasonable accommodation in education’ (2015) 4(2) The Irish Community Development Law Journal 16Google Scholar at 25.

142 Maguire v Bob's News and Deli Dublin DEC-S2004-025.

143 Wellard v Killester College DEC-S2008-024.

144 Two Complainants (A Mother and her Son) v A Primary School DEC-S2006-028.

145 Gallagher and Wilson v Donegal County Council DEC-S2006-60.

146 Maguire v Bob's News and Deli Dublin DEC-S2004-25.

147 Mrs A (on behalf of her son) v A Boys National School DEC-S2009-031.

148 Thompson v Iarnród Éireann DEC-S2009-015.

149 A Patient v The Mater Misericordiae University Hospital DEC-2009-057.

150 Maugham v Glimmerman Ltd DEC-S2001-020.

151 Ms A (on behalf of her sister B) v Aer Lingus DEC-S2009-038.

152 See, eg, the comments of MacMenamin J (minority) in Cahill v Minister for Education and Science [2017] IESC 29 at [66].

153 Deans v Dublin City Council (unreported, Circuit Court, 15 April 2008) per Hunt J.

154 Wellard v Killester College DEC-S2008-024.

155 Cahill v Minister for Education and Science [2017] IESC 29.

156 Ibid, at [66].

157 Ibid, at [15].

158 Ibid, at [73].

159 A Complainant v A Local Authority DEC-S2007-49.

160 Halliman v Moy Valley Resources DEC-S2008-025.

161 Wellard v Tesco Ireland Ltd DEC-S2009-047.

162 An Employee v A Local Authority DEC-E2002-4.

163 154 Seanad Éireann Col 666 (6 February 1998).

164 Kwiotek v NUI Galway DEC-S2004-176.

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