Many employers are aware that the Employment Equality Acts 1998 to 2007 prohibit employers from discriminating on nine grounds, one of which is disability. The definition of 'disability' is extremely broad and includes, for example, a learning difficulty (such as dyslexia), alcoholism, anorexia, mental health difficulties and whiplash.

Section 16 of the Acts requires that a person who has a disability be regarded as fully competent to undertake any duties associated with their employment if, with 'reasonable accommodation', such a person would be able to undertake those duties. It further requires an employer to take 'appropriate measures' to enable a person with a disability to have access to employment, to participate or advance in employment, or to undergo training, unless the measures would impose a 'disproportionate burden' on the employer.

In July of this year, the Equality Tribunal ordered Aviance Limited to pay a total sum of €125,000 to a former employee, Mr Kavanagh. Mr Kavanagh had sustained an elbow injury at work and was out on sick leave for about a month. During a consultation with the company doctor, his cardiac condition was raised as Mr Kavanagh had undergone a number of cardiac procedures since 1989. The company doctor expressed concern about his fitness to work as she was of the view that the role of ramp supervisor would necessarily involve the regular lifting of heavy objects. (Mr Kavanagh challenged this view).

Over a period of almost a year, the company doctor consulted with Mr Kavanagh's cardiologist but at no time did she certify him fit to return to work. The company ultimately dismissed Mr Kavanagh on medical grounds. He issued proceedings for:

• discriminatory dismissal (for which an award of up to two years' remuneration can be made), and
• discriminatory treatment (for which an award of up to two years' remuneration can also be made).

It was stated in evidence on the company's behalf that it had done all within its power to accommodate Mr Kavanagh's disability, that it undertook a review of all positions in the organisation but could not find a suitable role for him. In the course of the hearing, there was a serious conflict of evidence between the parties as to the role of ramp supervisor and the amount of heavy lifting involved. However, the Equality Officer was not satisfied that there was a baggage handling element to the role and held that with 'reasonable accommodation' - in other words, with guarantees that Mr Kavanagh would be allocated a full crew compliment - he could have carried out his duties. According to the Equality Officer, this would not have imposed a 'disproportionate burden' on the employer.

The tribunal awarded him €125,000, broken down as follows:

• €65,000 for loss of earnings as a result of the discriminatory dismissal, and
• €60,000 as compensation for the stress suffered as a result of the discrimination and the company's failure to provide 'reasonable accommodation'.

Mr Kavanagh had earned an annual salary in the region of €33,000.

It appears that the Equality Tribunal is increasingly prepared to award significant amounts in cases involving discrimination. Employers ought to be aware that employees who are dismissed and who allege that they have been subjected to unfair or discriminatory treatment on the grounds of disability can potentially bring two separate claims - one for discriminatory dismissal and another for discriminatory treatment - rendering them liable to pay an award of up to four years' remuneration. Employers who are contemplating the dismissal or removal of an employee with a disability should proceed with caution.

For further information please contact Aoife Bradley.