Reasonable accommodation in Irish constitutional law
Shivaun Quinlivan and Lucy-Ann Buckley
The concept of reasonable accommodation entails adapting systems and processes in response to individual needs. Although its origins lie in religious discrimination, it has proved essential for ensuring equality for persons with disabilities. Ireland is obliged to provide reasonable accommodation for persons with disabilities in the employment context under the Framework Employment Directive and in multiple other contexts under the UN Convention on the Rights of Persons with Disabilities (CRPD), which Ireland ratified in 2018. As yet, however, the CRPD has not been fully implemented by national legislation. In practice, therefore, the Irish Constitution may be the only driver for reasonable accommodation in many contexts.
Our article, ‘Reasonable accommodation in Irish constitutional law: two steps forward and one step back – or simply out of step?’ assesses the extent to which the Constitution permits or requires the provision of reasonable accommodation.
The ability of the Constitution to encompass a reasonable accommodation duty compliant with the CRPD depends on the model of equality it adopts. While the principle of equality is enshrined in Article 40.1, this has generally been restrictively interpreted, and the courts have largely adopted an approach based on formal rather than substantive equality. The main scope for a reasonable accommodation principle lies in the so-called ‘proviso’ in article 40.1, which permits the state to ‘have due regard to differences of capacity, physical and moral, and of social function’. However, the practical application of the proviso remains problematic.
In terms of permitting differential treatment, it has generally been emphasised that a distinction may be justified if it is not arbitrary or capricious – an approach which prioritises state discretion, once it has any perceived reasonable basis. However, in Dokie v DPP  IEHC, the High Court held that ‘legislative infringement on rights contained in article 40.1 must satisfy the proportionality test’. In terms of requiring differential treatment, the situation is more complex. In Draper v Attorney General  IR 277 (SC), the plaintiff had multiple sclerosis and was unable to go to a polling station to cast her vote, as this could potentially have been life-threatening. She contended that the electoral laws that authorised a postal vote or special assistance for certain classes of voters, but which excluded her, constituted a breach of the equality guarantee. She sought declarations that facilities be made available to enable her to exercise her franchise. Effectively, she sought a reasonable accommodation – different treatment that would enable her to vote, as others could. However, the Supreme Court held that the state’s failure to make different provision for her did not violate the equality guarantee. Draper thus clearly indicates that the proviso, while permissive, is not mandatory, and that differential treatment of those who are differently situated is not considered an essential aspect of equality.
A different approach was taken subsequently in DX v Judge Buttimer  IEHC 175. This involved a judicial review of the refusal of a judge to permit the plaintiff to be accompanied and assisted by a Ms S during his family law proceedings. The plaintiff had undergone a laryngectomy, which made his speech difficult to understand and depleted his energy. The plaintiff depended on Ms S for support, but more particularly she was familiar with his speech and could have assisted him in the initial hearing. Hogan J, in the High Court, noted that article 40.1 obliges the courts to ensure that all persons are ‘held equal before the law’ and that disabled litigants should not be placed at a disadvantage compared with others. This decision suggests that disparity of treatment may be required in some circumstances to prevent inequality; effectively, this is a move from formal to substantive equality, more compatible with the CRPD. However, the subsequent Supreme Court decision in Fleming v Ireland  IESC 19, rejecting the severely disabled plaintiff’s argument that the threat of criminal liability for helping her to commit suicide resulted in a breach of the equality guarantee, again suggests that reasonable accommodation measures may be constitutionally permissible, but are not mandatory.
The permissive capacity of the Constitution is not straightforward, as demonstrated in Re Article 26 and the Employment Equality Bill 1996  2 IR 321 (SC). The 1996 Bill required employers to provide reasonable accommodation to employees with disabilities, unless this would amount to ‘undue hardship’. The Supreme Court held that this amounted to an impermissible interference with the constitutional right to private property in article 43. We argue, however, that a proportionality test, such as that applied by the Supreme Court in other constitutional contexts, fits well with the ‘disproportionate burden’ test for reasonable accommodation mandated by the CRPD and appears to fit squarely within existing Irish constitutional principles. Accordingly, we contend that article 43 does not necessarily prevent or unduly limit a constitutional duty of reasonable accommodation.
Overall, it seems clear that there has been some constitutional movement in relation to reasonable accommodation in recent years, and that the overall approach has moved beyond the permissive to the mandatory, in at least some contexts. It also appears that there may be more scope for interference with private property rights than is commonly thought, if proportionality criteria are applied. If so, this would greatly strengthen the scope for statutory intervention and increase the potential for CRPD compliance. However, the potential for recognising a general constitutional duty of reasonable accommodation is contingent on a greater and more dynamic understanding of equality, and a more social model of disability (explored further in our article). On the evidence of Fleming, the only recent Supreme Court decision on this point, these elements still appear to be lacking in the constitutional context.
There are undoubted steps forward represented in decisions like DX and Harrison, but these positive steps are countered by the step backward in Fleming. The apparent subordination of the equality guarantee to other constitutional norms, such as the right to private property, appears to have had a chilling effect on the legislature. This, coupled with the widespread critique of the equality guarantee and its interpretation, and the glacial pace of change, suggests the need for more substantial reform. It is time to amend the equality guarantee to implement a more substantive understanding of equality that is more in line with our international obligations and less out of step with comparative and international jurisprudence.
 See eg Constitution Review Group, Report of the Constitution Review Group (Stationery Office 1996); Gerard Hogan, Gerry Whyte, David Kenny and Rachael Walsh, Kelly: The Irish Constitution 5th edn (Bloomsbury 2018); Oran Doyle, Constitutional Equality Law (Thomson Roundhall 2004).