This issue arose in case ADJ-00015823. The Adjudication Officer in this case set out that the Employment Equality Act transposes EU Directive 20/78/EC. It was pointed out that the Directive does not define disability but that the European Union has approved the definition of disability as set out in the UN convention on the rights of persons with disability. This provides that a disability is an evolving concept and arises from the interactions between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. Article 1 of the Convention sets out that persons with disabilities include those who have long term, physical, mental intellectual or sensory impairments. The Court of Justice of the European Union has held that a disability must be long term and the Adjudication Officer quoted the case of HK Denmark E-335 and 337/11.
The Adjudication Officer pointed out that disability has been interpreted in a broad manner and noted the established precedent from the Labour Court that anxiety and stress can fall within the definition of disability under the acts under certain circumstances. The Adjudication Officer quoted the case of A Government Department -v- A Worker EDA094
“The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland -v- Purcell 1989 IR327). Nevertheless, no statute can be construed so as to produce an absurd result or one that it repugnant to common sense. The common law rule of construction has now been given statutory effect by Section 5 (1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity”.
In relation to the definition of disability the Labour Court noted:
“It is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is ascribed thereto. Further, the definition does not refer to the extent to which the manifestations of symptoms must be present. However, a de minimis rule must apply and effects of symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal effect on the subforum. This is clear from the definition which provides that – “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”
The Adjudication Officer also quoted the case of Health Service Executive North West and Cullen Killoran EDA 1830:
“While disability is broadly defined by the acts each of the examples given in the acts relate to malfunctions or abnormalities of the mind or body”
It is useful that the Adjudication Officer took the time in this case to go through the law in some depth.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
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