WRC clarifies positions on disability discrimination where employee is not disabled and positive discrimination

Author: Barry Walsh and Siobhán Lafferty

April 23, 2018

Lydon v Navan Education Centre

Brendan Lydon, the complainant in the matter, was an educational coordinator at the Navan Education Centre (“the Centre”). As part of the Centre’s restructuring, which involved reducing the number of coordinators from four to two, Mr Lydon was expected to re-apply for his job.

One of the four coordinators had been hospitalised and had a temporary illness, and it was unclear when she would be in a position to return. The interview process was delayed so that the colleague in hospital could attend an interview. The Centre then went ahead with the interviews, but did not interview the colleague who had been in hospital. That colleague was subsequently appointed to one of the roles and Mr Lydon was unsuccessful in securing one of the remaining positions.

Mr Lydon complained that the selection of one of the candidates without her having to go through the interview process amounted to discrimination as he was “being treated less favourably because he does not have a disability.”

Mr Lydon was unsuccessful in his claim. The case does highlight that there is nothing in the Employment Equality Acts 1998 – 2015 (the “Acts”) which prevents a person without a disability from raising a claim on the disability ground. However, the issue will then become whether the actions of the employer fall within section 35 of the  Acts, which allows employers to positively discriminate in favour of disabled employees. The Adjudication Officer noted that although the employer had not considered any alternatives to “giving her a bye”, he also stated that positive discrimination means an employer has a “wide latitude in giving a disabled employee special treatment or facilities.” This case highlights the wide discretion afforded to employers regarding the provision of preferential treatment to colleagues suffering from a disability.

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