Disability and Employment Law
What happens if you have a disability and you are applying for a job and the pre-employment questionnaire asks you about your medical information? Should you disclose? What happens if you make a conscious decision to withhold information about your disability for fear that you will not obtain employment. Read below for more on Disability and Employment Law.
Recruitment
Pre-employment questionnaires have a role to play in the recruitment process as they allow an employer to establish whether or not a prospective employee can perform the duties associated with a particular post and to examine and determine what, if any “appropriate measures” need to be provided to enable a prospective employee with a disability perform those duties.
Equality Tribunal Case – Disclosure of Disability
In a recent case the Equality Tribunal found against a complainant (the employee) who had a hearing impairment. The complainant was employed by the respondent as a Staff Nurse from June, 2008 until June, 2009. He asserted that during his period of employment he was treated in an unlawful manner by the respondent contrary to the Employment Equality Acts, 1998-2008. The complainant referred his complaint to the Equality Tribunal.
The complainant did not disclose his hearing condition on the pre-employment medical questionnaire given to him by the respondent and stated that he adopted this approach because:
- he did not consider it an illness
- he had worked for several years as a nurse and his hearing did not present a problem.
During the course of the employment the respondent became aware of the complainant’s hearing impairment. They immediately sought information relating to same. From March 2009 until May 2009 the respondent tried to ascertain details from the complainant about his hearing condition but the complainant continuously withheld from giving the information which the respondent required.
The issues which the Equality Tribunal had to decide on were whether the complainant was:
- discriminated against on grounds of disability
- harassed on grounds of disability
- dismissed in circumstances amounting to discrimination on grounds of disability
- and whether the respondent failed to provide the complainant with reasonable accommodation
Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. It provides that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of the discrimination.
Disability – Less Favourable Treatment
Section 6 of the Acts provides that discrimination shall be taken to have occurred where “a person is treated less favourable than another person is, has or would be treated in a comparable situation on any of the….discriminatory grounds.” The complainant stated he had suffered less favourable treatment on grounds of disability in three ways:
- the application of the respondent’s disciplinary process against the complainant,
- the manner in which it treated him in respect of providing him with a reference and
- the removal of him from the roster in late May, 2009.
The Equality Tribunal considered each of the complainant’s arguments but didn’t agree with any of them. When reading the judgment it can be seen that a lot centred around the fact that the complainant had not disclosed his disability on the pre-employment form.
The Complainant submitted that the format of the pre-employment questionnaire was too broad and that he completed the document fully and did not mislead the respondent in any way. The respondent stated that the steps it took in dealing with the complainant were ones it was entitled to take as they arose solely out of the complainant’s failure to disclose his hearing impairment in the first instance and thereafter to comply with fair and reasonable directions that he provide clarification on an extremely important issue over a protracted period.
The Tribunal examined the questionnaire and noted that it clearly stated that a failure to disclose medical information or to give false or misleading information can give rise to the application of the respondent’s Disciplinary Policy.
The Tribunal considered that the complainant knowingly withheld pertinent information from the questionnaire. The respondent accepted his responses on the questionnaire in good faith and employed him. In the circumstances the Tribunal could not see how the complainant suffered any less favourable treatment as regards this aspect of his complaint. The Tribunal further noted that during his employment the complainant deliberately withheld and avoided obtaining from his GP, the information which the respondent sought.
In assessing the complainant’s evidence the Tribunal found it extraordinary that the complainant stated he made just two telephone calls to his consultant requesting he furnish the letter requested as soon as possible. Furthermore, the Tribunal found it equally extraordinary that in the course of the meeting the complainant made no reference to his consultant’s recommendation about the use of a hearing aid and its potential to overcome the difficulties he was experiencing. The complainant’s response at the Hearing as to why he did not mention the hearing aid was that the respondent did not specifically raise the issue.
The Tribunal was satisfied that respondent invoked its Disciplinary Policy against the complainant because of his continued failure to engage with it in its efforts to assess whether or not he had a disability and if so what, if any, impact it had on his ability to perform the tasks associated with his post. The Tribunal further noted that the complainant had failed to adduce any evidence which could lead the Tribunal to the conclusion that the respondent would have treated any other employee who had no disability, or had a different disability to the complainant, different in similar circumstances i.e. where the employee failed to respond to a reasonable request from the employer. Hence, the complainant failed to establish a prima facie case of discrimination.
Dismissal of the complainant
The complainant’s claim was that he was dismissed in circumstances amounting to discrimination on grounds of disability contrary to the Acts. The general thrust of his claim on that issue was that he was subjected to several months of harassment and discrimination, culminating in the respondent’s Disciplinary Policy being applied to him and during which pressure was brought to bear on him to resign or face serious consequences for his future employment, the complainant resigned. The complainant submitted that this amounted to constructive discriminatory dismissal pursuant to the Acts. The respondent rejected the assertion and stated that the complainant resigned of his own volition.
In a meeting of the 27th of May 2009 as part of the Disciplinary Process the complainant stated that at this meeting he was given the option of resigning or facing serious consequences of not being able to secure future employment in Ireland because of his record. The respondent furnished minutes of this meeting.
The Tribunal were satisfied that there was no pressure on the complainant to resign. They concluded that on balance the complainant resigned from his employment of his own volition. The Tribunal in coming to its decision also took into consideration the tone and language of the complainant’s letter of resignation, which the Tribunal felt was amicable and gave thanks to the respondent for “the wonderful experience” he had during his time there. The Tribunal noted that this language was inconsistent with the torrid time he alleged he experienced at the hands of the respondent. The Tribunal also took into consideration the fact that the complainant had commenced the process to seek employment in Australia at the time. The Tribunal also found it extraordinary that the complainant would volunteer to continue working in such a dreadful environment for a moment longer (he offered to fulfil the remainder of his scheduled shifts until the 7th of June, 2009) when he could leave immediately without financial loss.
The Tribunal were satisfied that the “reasonableness” test required the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he was therefore entitled to resign from its employment. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating his employment, to give the respondent the opportunity to address her grievance or complaint. The complainant did not do so in this instance and this omission of itself was a factor to be considered.
The Tribunal concluded that the complainant had failed to establish a prima facie case of discriminatory dismissal in terms of the Employment Equality Acts, 1998-2008 and this element of his complaint could not succeed.
Reasonable Accommodations
It is somewhat interesting that the facts of the case show that the complainant continuously withheld giving the respondent information about his disability. Yet, the complainant made the argument that the respondent had failed to provide him with reasonable accommodation in accordance with section 16 of the Acts.
The Tribunal were satisfied that the complainant persistently thwarted the respondent’s efforts to clarify the exact nature of his disability from March, 2009 onwards – when it became aware he may have hearing difficulties. It follows therefore that the complainant could not maintain a claim against the respondent that it failed to provide him with reasonable accommodation and accordingly that aspect of his claim failed.
Interestingly, the Tribunal referred to section 16(4) of the Acts. This provision defines “appropriate measures” in terms of reasonable accommodation but expressly excludes at paragraph (c) “any treatment, facility or thing that the person might ordinarily or reasonable provide for himself or herself.” The Tribunal were satisfied that a hearing aid, the benefit of which generally extends beyond the working environment, falls within this exclusion.
Conclusion
It is understandable why a person with a disability might not want to disclose their disability on a pre-employment form. Whether you disclose or not is a decision only you can make. However, it is important to be aware that if you make a conscious decision to continually withhold information about your disability then this would be seen as unreasonable. The complainant in the above case failed to succeed on any of his four grounds. The complainant ‘continuously’ withheld information about his disability during the course of his employment which is an indicative factor as to why he didn’t succeed in his case. Moreover, the fact that the complainant didn’t refer to any recommendations of his consultant to help him overcome his difficulties could be seen as being uncooperative. All of which does not help in trying to succeed in a disability action case. What is interesting from this case is the Equality Tribunal carefully considered the ‘consistency’ and ‘reliability’ of the complainant’s evidence. Thus, if there is any potential complainant out there who is thinking of taking a case based on disability then please note the Tribunal will carefully consider the consistency and reliability of your evidence.
