International Comparative: Legal Models for Workplace Inclusion

was finished in 2018 but still has not been published. The NDA report reflects a lack of guidance from the Government on why these plans have not been followed through.313

Conclusions on the Strategy The Strategy is an appropriate recognition of the strong need for employment reform for people with disabilities in Ireland. However, it is questionable whether it is being deployed with the priority it needs. It would be reasonable to say that, in any case, Ireland is behind on its overall goal of reaching proportionally equal workforce representation by people with disabilities. This is particularly true upon comparison to the rest of the EU.

The deployment of the Strategy presents room for improvement in early education, which must adapt to the needs of every student. This is possible with seamless incorporation of universal design in education, which has yet to be seen. The education-employment link must be supported by early career guidance programs and supported employment schemes. These programs are eagerly awaited by students with disabilities. This appears to be the most significant deficiency in the execution of the Plan.

Other areas for improvement include shifting the mindset of employers towards employees with disabilities; action has been taken but it is unclear whether outcomes have been reached. Another issue is transportation, particularly in rural Ireland. Remote working presents a possible solution for some, but transportation is still crucial. Lastly, the priority of making work pay still presents room for opportunity as people who receive disability payments, particularly later in life, are disincentivized from working due to the low income threshold for revocation of these benefits.

III. International Comparative : Legal Models for Workplace Inclusion

This Section will comparatively look at the legal models for workplace inclusion regarding the needs and provisions for people that have disabilities. This section will compare the legal models in the United Kingdom, Ireland, and Australia The United Kingdom

In the UK, employers cannot discriminate against a person with disabilities under The Equality Act 2010. The Equality Act 2010 imposes a duty to provide reasonable adjustments for people

313 OECD, ‘Disability, Work and Inclusion in Ireland’ (September 2021).

with disabilities. According to the Act, reasonable steps should be taken to avoid putting people with disabilities in a disadvantaged position, essentially, if a practice puts a person with disabilities at a substantial disadvantage in comparison to a person without a disability, actions should be taken to minimise the disadvantage.314

Further under the Equality Act 2010, employers have a duty to reduce any disadvantage caused to people with disabilities where the disadvantage is caused by the inclusion of a physical feature. Likewise, in an instance where auxiliary aid is necessary to reduce a disadvantage being caused, reasonable steps should be taken to provide the auxiliary aid. When the requirements relate to the provision of information, the employer has a duty to take reasonable steps to provide such information in an accessible manner . Where it is necessary to make reasonable adjustments to meet the needs of a person with disabilities, the onus is on the employer to make the necessary adjustments and not on the person with disabilities. For instance, the person with disabilities cannot be held responsible for the related costs created by the employer’s compliance with the duty to make adjustments. Another legislation that protects the employment rights and entitlements of people with disabilities in the UK is the Health and Safety at Work Act 1974 (HSWA 1974). This Act lays out the general duties of employers to all their employees which includes employees with disabilities. This Act imposes duties on employers to ensure that the workplace is a place that is safe for employees and to ensure that employees are protected from risks connected with the work roles and responsibilities of the job. Australia

In Australia, employers have a duty to ensure that the workplace is safe , secure, and free of discrimination. These duties are enforced through legislation, industrial instruments, and the common law. National Employment Standards (NES) are terms and conditions that protect the rights of employees in the workplace, these rights are derived from the Fair Work Act 2009, which is one of the most important sources of employment law in Australia. The Fair Work Act 2009 provides the minimum conditions for employees in parts of Australia. However, the Fair Work

314 Health and Safety at Work Act 1974: An Overview ( InBrief.co.uk, 2021) <https://www.inbrief.co.uk/employees/health-and-safety-at-work-act/> accessed 3 November 2021.

Act 2009 does not cover all regions of Australia, for instance ,Western Australia, has its own state-based legislation regulating workplace standards.

315

The Fair Work Act 2009 covers requests for flexible working arrangements for people with disabilities (Division 4 (65)). This Act includes a special national minimum wage for people with disabilities (Part 2-6, Division 1 (s. 282)) and protects against discrimination against people with disabilities (Division 5 (s. 351)) . According to the Act, an employer must not take adverse action against an employee or prospective employee because of the person’s physical or mental disability . Further, it ensures that employment cannot be terminated on grounds of physical or mental disability. The Disability Discrimination Act 1992 is another piece of legislation that protects the rights of people with disabilities in the workplace. This Act is more focused on specifically protecting people with disabilities from discrimination. It covers areas relating to work , accommodation, education, access to premises, clubs and sport. According to Part 2 Division 1 (15) of the Act, an employer or a person acting on behalf of an employer is prohibited from discriminating against a person with disabilities on the ground of the person’s disability during the hiring process. i.e., determining who should be offered employment. Discrimination is also prohibited in the terms and conditions in which employment is offered. (Part 2 Division 1 (15(1))). Likewise, this Act states that “it is unlawful for an employer or a person acting on behalf of the employer to discriminate against a person on the grounds of disability ” in the terms and conditions of employment or by “limiting” the employees access to transfer or training , opportunities for promotion , or any other benefits associated with employment. Part 2 Division 1 (15(2))). Additionally, cases of unlawful discrimination under this law can be brought to the Australian Human Rights Commission due to the powers of the Australian Human Rights Commission Act 1986.

Analysis

315 Fair Work Ombudsman, ‘Employment Conditions’ (2021) <https://www.fairwork.gov.au/employmentconditions/protections-at-work#adverse-action> accessed 2 November 2021; Fair Work Commission ‘National employment standards’ <https://www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions/nationalemployment-standards> accessed 3 November 2021; Australian Human Rights Commission ‘The Rights of People with Disabilities: Areas of Need for Increased Protection: Chapter 2: Employment’ (2021) <https://humanrights.gov.au/our-work/rights-people-disabilities-areas-need-increased-protection-chapter-2employment> accessed 8 November 2021.

From a comparative view, the countries explored have quite similar legal models in that they all provide legislation that establishes entitlements for people with disabilities in employment and the workplace. In the UK we see that it is expected that reasonable adjustments should be made for people with disabilities in a way that minimises disadvantages as much as possible. Similarly , in Australia , through afore-mentioned legislations, there are provisions made to accommodate and make adjustments in the workplace for people with disabilities. Likewise, Irish legislation provides for the provision of necessary accommodations and adjustments to improve the inclusion and participation of people with disabilities in the workplace. Another main similarity between these countries’ legal models is that they all provide legislations that strictly and explicitly prohibit the discrimination of people with disabilities in employment which applies from the recruitment process, the course and termination of employment. With regards to possible points of improvement, according to The Journal of Nursing Administration in an article tackling the issue regarding creating a workplace that is disability inclusive, it is recommended that adjustments for people with disabilities should be made universal throughout the workplace rather than based on case-by-case basis. Another recommendation is that employers should work towards making the job roles available flexible and adaptable, if possible, for instance creating new tasks or tasks that can be adapted to a person with a disability.316

Chapter Conclusion

Within an Irish context there remains significant work to be done in ensuring the effective inclusion of persons with disability within employment. Recommendations, based on his chapter’s research, which could help see this become a reality strategies to see this become a reality consist of policy schemes focusing on the transition from secondary school to further education for persons with disabilities, the commencement of proposed employment support systems, the implantation of universal design across workplaces and introducing flexible work arrangements more broadly across the employment sector.

316 S Matt, S Fleming and D Maheady, ‘Creating Disability Inclusive Work Environments for Our Aging Nursing Workforce’ [2015] 45(6) JONA: The Journal of Nursing Administration 325.