Disability in employment equality law: A reappraisal of the reasonable accommodation duty and issues arising in its implementation
| DOI | 10.1177/1023263X211035268 |
| Date | 01 December 2021 |
| Published date | 01 December 2021 |
| Author | Patrick Daly,Darius Whelan |
| Subject Matter | Articles |
Article
Disability in employment
equality law: A reappraisal
of the reasonable
accommodation duty
and issues arising in its
implementation
Patrick Daly* and Darius Whelan**
Abstract
This article re-considers the special features of the disability ground in EU equality law and raises
questions as to whether theEU’s Framework Equality Directive (Directive2000/78) may be in need
of fundamental reform. It argues that the ‘Competence Defence’ in the Directive could have been
more strongly drafted,to prescribe more precisely the circumstances in which an individual may be
found not to be competent to perform the post’s essential functions. In the absence of a unified EU
approach regarding the activation of the reasonable accommodation duty and an employer’s
knowledge as to disability or the need for reasonable accommodation, national positions are
compared. A model whereby the provision for individuals with disabilities is carried out in a
proactive as opposed to a reactive manner could reduce the need for the reasonable accom-
modation system. The possibility of increased state involvement in the provision of reasonable
accommodation to employees has strong potential. It is proposed that the principle of Universal
Design, as expressed in the Convention on the Rights of Persons with Disabilities, could be used to
ensure that work environments are developed from the outset to be conducive to the needs of
those with physicalor psychosocial disabilities.The implications of such a major changeare assessed.
Keywords
Disability, employment equality, convention on the rights of persons with disabilities, reasonable
accommodation, universal design
* Unaffiliated
** School of Law, University College Cork, Cork, Ireland
Corresponding author:
Darius Whelan, Senior Lecturer, School of Law, University College Cork, Cork, Ireland.
E-mail: d.whelan@ucc.ie
Maastricht Journal of European and
Comparative Law
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211035268
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2021, Vol. 28(6) 744–759
1. Introduction
The disability ground in employment equality law is the focus of a great deal of academic
discussion. It has led to some high profile CJEU cases such as Chacon Navas
1
and more recently
V.L.
2
At the Member State level, in Ireland the Supreme Court recently decided the Nano Nagle
case,
3
which has been the subject of detailed analysis.
4
In the UK, the Court of Appeal has also
recently considered the disability ground in the Donelien case.
5
Disability and human rights are
under more detailed scrutiny in recent years, given the adoption of the Convention on the Rights of
Persons with Disabilities (CRPD)
6
and the Sustainable Development Goals.
7
This article will
reconsider the special features of the disability ground in EU equality law and raise questions
as to whether the EU’s Framework Equality Directive (Directive 2000/78) may now be in need of a
more fundamental reform.
The article begins in section 2 with a brief review of some of the special considerations which
apply to the disability ground, especially the reasonable accommodation duty and the dispropor-
tionate burden defence. Section 3 examines the competence defence, which states that the
employer is not required to recruit an individual, or maintain them in employment, if they are not
competent to perform the essential functions of the post, provided reasonable accommodation has
been made. In Section 4, we discuss when the reasonable accommodation duty is activated, and the
particular difficulties this raises, for example in the case of those with psychosocial disabilities.
Section 5 considers potential solutions to the issues raised in the earlier parts. The potential to
enhance state involvement in the process of reasonable accommodation is highlighted, and the
prospect of Universal Design being adopted as an overarching new principle in EU equality law is
discussed.
2. The disability ground – special considerations
Discrimination against persons with disabilities in employment is widespread and well documen-
ted. In 2018, there was a 75%employment rate for people with no disability in the EU, but this
reduced to 58.3%for those with moderate disability and 28.7%for those with severe disability.
8
1. Case C-13/05 Chaco
´n Navas v Eurest Colectividades SA, EU:C:2006:456; L. Waddington, ‘Case C-13/05, Chaco
´n
Navas v. Eurest Colectividades SA, judgment of the Grand Chamber of 11 July 2006’, 44 Common Market Law Review
487 (2007).
2. Case C-16/19 V.L. v Szpital Kliniczny im. dra J. Babin
´skiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w
Krakowie, EU:C:2021:64.
3. Nano Nagle School v Daly [2019] IESC 63.
4. D. Ryan and M. Bell, ‘Disability, Reasonable Accommodation and the Employer’s Obligations: Nano Nagle School v
Daly’, 83 Modern Law Review (2020), p. 1059; S. Quinlivan and C. O’Mahony, ‘The Irish Supreme Court Judgment in
Nano Nagle School v Marie Daly: A Saga of Litigation’, 70 Northern Ireland Legal Quarterly (2019), p. 505; L.-A.
Buckley and S. Quinlivan, ‘Reasonable Accommodation in Irish Equality Law: an Incomplete Transformation’, 41
Legal Studies (2021), p. 19; E. O’Connor and E. O’Callaghan, ‘Reasonable Accommodation and the Disabled
Employee: Nano Nagle School v Marie Daly’, 16 Irish Employment Law Journal (2019), p. 104 .
5. Donelien v Liberata UK [2018] EWCA Civ. 129; [2018] IRLR 535.
6. United Nations Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106.
7. United Nations, Transforming Our World: The 2030 Agenda for Sustainable Development, Resolution adopted by the
General Assembly on 25 September 2015, A/RES/70/1. Disability is highlighted in a number of the goals, for example
Goals 4, 10 and 17.
8. European Disability Expertise, Master Tables Concerning EU 2020: year 2018, Table 2.
745
Daly and Whelan
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