Shayne’s Notes

The Disabilities Act, 2014

Worksheet 4

The Disabilities Act is an Act to promote, protect and ensure the full and equal enjoyment by persons
with disabilities of privileges, interests, benefits and treatment on an equal basis with others… This
applies to employment, which includes part time employment, work performed under a contract of
service, and work performed under a contract for service. The term “employee” means a person who
is employed by another person and the term “employer” means a person who employs another person.

WHO IS PROTECTED? A “person with disability” includes a person who has a long-term physical,
mental, intellectual, or sensory impairment which may hinder his full and effective participation in
society, on an equal basis with other persons. In contrast, to be protected by the Americans with
Disabilities Act, one must have a disability or have a relationship or association with an individual
with a disability. An individual with a disability can be defined as a person who has a physical or
mental impairment that substantially limits one or more major life activities, a person who has a
history of such an impairment or a person who is perceived by others as having such an impairment.
- SOCIAL & MEDICAL MODEL. The policy of Jamaica’s legislation is anchored on a
social model of disability. The social model says that disability is caused by the way society is
organised instead of by their impairment. It looks at ways to remove barriers that restrict life
choices for disabled people so they may be independent and equal in society. The medical
model says that people are disabled by their impairments or differences. Under this model,
these impairments should be fixed by other medical treatments. It focuses on what is wrong
with the person, rather than what the person needs. This model creates low expectations and
leads to people losing choice and control in their own lives.

DISCRIMINATION. Section 3(d) of the Act states one of the principal objects of the Act is to
prevent or prohibit discrimination against a person with a disability, as well as Section 25 which states
a person with a disability shall not, by reason of such disability, be subject to any form of
discrimination. Section 29(1) further states that an employer shall not discriminate against a person
with a disability who is otherwise qualified for employment in the terms of employment offered,
opportunities such as promotion and benefits offered, or by dismissing him by virtue of his disability.
Section 24 also states that a person with a disability shall be entitled to privileges, interests, benefits,
etc. Under section 2, the term access is defined. This includes premises, freedom to enter in, benefits
and communication.
- A DEFENCE. Section 29(2) however offers a defence to the employer in stating that an
employer shall not be regarded as discriminating against an employee where the different
treatment is justified or cannot be avoided in the circumstances. It must be shown that the
action taken by the employer was a ‘proportionate means of achieving a legitimate aim’. The
relevant questions would be, Was the aim sufficiently important? Could the employer’s aim
have been achieved by alternative, less discriminatory means such as reasonable
arrangements? And Does the legitimate aim outweigh the discriminatory effects on the
claimant? In the case of Department of Work and Pension v Boyers (2022), the decision to
dismiss disabled employee was not proportionate. Mrs. Boyers worked for the Department for
 Shayne’s Notes

Work and Pensions, experiencing chronic migraines she believed were exacerbated by her
work environment. Despite requests for a change, her appeals were denied. Going on
long-term sick leave due to stress, she agreed to a work trial in Eston, which was terminated
abruptly by the DWP. Facing a return to her previous office, she was declared unfit for work
by her GP and subsequently dismissed. Ms. Boyers filed claims in the Employment Tribunal
(ET) for unfair dismissal and discrimination under section 15 of the Equality Act, citing
unfavourable treatment due to her disability-related absence. The ET acknowledged her
disability and upheld her claim. The Department for Work and Pensions (DWP) appealed
successfully, leading to a remittal to the ET to assess the proportionality and potential
justification of the dismissal. The DWP argued protection of public funds and reducing
impact on other staff as legitimate aims. The ET found the DWP failed to substantiate these
aims and determined the dismissal was disproportionate, considering its impact on Ms.
Boyers, the limited effect on the stated aims, and the possibility of continued employment
through a properly followed work trial. Similarly, in the case of Burdett v Aviva, Mr. Burdett,
an Aviva employee with a history of mental health issues, faced suspension after incidents
related to his condition. Despite admitting guilt for assaults, the Employment Appeal Tribunal
(EAT) ruled Aviva failed to consider his culpability properly. The EAT emphasised the need
for careful assessment in cases involving mentally ill employees and suggested dismissal
might not be the only reasonable response. The case underscores the importance of employers
to take into account the employee’s mitigating circumstances as well as the needs of the
business when deciding whether dismissal is a reasonable response.

INDIRECT/DIRECT. Discrimination under the act means any distinction, exclusion or restriction,
on the basis of disability, which has the purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise, on an equal basis with others of privileges, rights, legal interests, and
treatment, in the social, economic, cultural, civil, religious, etc… and includes all forms of
discrimination, including denial of reasonable arrangements.

The definition of discrimination includes both direct and indirect discrimination. While they both
entail one person being treated less favourably than another person, the major difference is that in the
case of direct discrimination, the treatment is on its face less favourable, whereas in the case of
indirect discrimination, the treatment is on its face neutral, but the impact of the treatment on one
person when compared with another is less favourable, ie. adverse impact.

- REASONABLE ARRANGEMENTS. The act covers all forms of discrimination, including

the denial of reasonable arrangements. Under the act, Section 2, this is defined as the
necessary and appropriate adjustments, not imposing an undue burden, to ensure to a person
with a disability, the enjoyment on an equal basis with others of privileges, interests, benefits
and treatment by the provision of auxiliary aids and services including equipment that may
alleviate the effects of a disability, the modification of such equipment and effective methods
of making aurally and visually delivered materials available to a person with a disability.’ The
employer has a duty to make adjustments. This is explicitly stated under Section 30.
Disproportionate burden is defined under Section 2 of the Act and includes the effect of the
disability on a person concerned, the financial circumstances, the estimated amount of
expenditure or allocation of resources required by the person claiming the burden and the
proportionality of it, and the detriment likely to be suffered by any person concerned. In the
case of Moncrief v ISS Facility Services, the employee, diagnosed with chronic obstructive
 Shayne’s Notes

lung disease and hypertension, faced denial of remote work as a part-time arrangement during
the pandemic. Given her health conditions and heightened risk of COVID-19, Moncrief
requested accommodation through the Americans with Disabilities Act (ADA) to work from
home two days a week with breaks while working on-site. Despite her need for the
accommodation due to health concerns, she was fired, purportedly for job performance issues
not communicated previously. The Commission determined that these actions constituted
disability discrimination, emphasising that the refusal to permit remote work was an
unreasonable measure and should have been granted as a reasonable accommodation under
the circumstances. In the case of Daly v Nano Nagle School, Marie Daly, a special needs
assistant (SNA) at Nano Nagle School, sought to return to work after becoming paralyzed
from the waist down. The school board, following a review of expert reports, concluded she
couldn't fulfil all duties as an SNA. The school refused her return. Marie Daly filed a
complaint with the Equality Tribunal, claiming the school failed to provide reasonable
accommodations for her disability under the Employment Equality Acts. The Equality
Tribunal ruled in favour of the school in 2013. Marie Daly appealed to the Labour Court,
which decided in her favour. The court held that the school had a duty to explore work
reorganisation and task redistribution to accommodate Ms. Daly's limitations.

- Redeployment? Section 31 speaks to redeployment of an employment. It states that

where an employee has become disabled by virtue of his employment or otherwise,
meaning on or off the job, and is no longer capable of carrying out the tasks required
in his contract of employment, the employer shall redeploy, so long as there is no
disproportionate burden to a different position that won’t result in any loss of benefits
to the employee and is in line with the current skills and abilities of the employee.

REMEDIES AVAILABLE.