Is being physically unfit a disability? (Employment Equality Acts 1998 and 2004)

connundrum

I ask as it had come up with a couple of friends in idle chat.

If I were to seeking to employ someone in either an active or inactive role, and the person I was interviewing was clearly unfit (physically) for the role, would I in not employing him/her be discriminating against him/her?

What is discrimination?

A person is said to be directly or indirectly discriminated against if he/she is treated less favourably than another is, has been or would be treated in a comparable situation on any of the following 9 grounds:

Gender. It should be noted that this includes discrimination faced by a female employee during pregnancy or on her return from maternity leave.
Marital Status
Family Status
Sexual Orientation
Religion
Age (does not apply to a person under 16)
Disability
Race
Membership of the Traveller community

To further that question, would it then be unfair to ask potential employees going into an active role to take a physical fitness test? We know that the Gardai/Army have such a test, so why could the private sector not introduce a similar test?

Forest Master

It's not discrimination if they don't fit the role. So you could easily not hire an unfit person for an active role on those grounds. If it's a required part of the job (or an advantage) to be fit, then it's fair.

That'd be like an ugly person suing a model agency for discrimination, when it clearly isn't - they just don't fit the role.

mikemac

connundrum wrote: »

To further that question, would it then be unfair to ask potential employees going into an active role to take a physical fitness test?

I've done it for a factory floor job. Checking I could bend and stretch so to pick things up. Blood pressure and resting heart rate checked.
Hearing test and urine drug test too

I declared a previous back problem so the nurse sent me to the doctor for an examination.

I think it was a pretty good check for fitness so it happens alright.

A worker on a factory floor who can't pick up boxes or sit on an assembly line is pretty useless.

maglite

You'd have hoped so but I fear you are mistaken. You must make reasonable accommodation for their "disability". Reasonable being a very unsuitable word imho. For a factory worker you may have to employ mechanical lifting aids, install lifts etc.

Recent Story
http://www.boards.ie/vbulletin/showthread.php?t=2056296191

jackiebaron

connundrum wrote: »

I ask as it had come up with a couple of friends in idle chat.

If I were to seeking to employ someone in either an active or inactive role, and the person I was interviewing was clearly unfit (physically) for the role, would I in not employing him/her be discriminating against him/her?



To further that question, would it then be unfair to ask potential employees going into an active role to take a physical fitness test? We know that the Gardai/Army have such a test, so why could the private sector not introduce a similar test?

Yes, it's not discrimination if it's patently clear that whatever characteristic the person has it disqualifies them from consideration for the job.

It's discrimination to reject a wheelchair-bound person from doing a typing job. That's simple.

But it's not discrimination (based on gender) to reject a man's application to become a surrogate mother.

It's not discrimination to reject a double amputee for a job modelling stockings...you clearly have to have legs and preferably shapely ones.

And I don't think it's discrimination to pass up a frail old 90 year-old man for a job as a bouncer or bodyguard.

connundrum

maglite wrote: »

You'd have hoped so but I fear you are mistaken. You must make reasonable accommodation for their "disability". Reasonable being a very unsuitable word imho. For a factory worker you may have to employ mechanical lifting aids, install lifts etc.

Recent Story
http://www.boards.ie/vbulletin/showthread.php?t=2056296191

Reading the bones of that story, I can see the following:

She complained to the tribunal that prior to the course starting she had been led to believe that she would not have to take part in the shield run. But on the day of the test, Insp Bamber was informed that all officers who wanted to be considered for events where trouble was a possibility would have to pass it.
She agreed to run but she did not finish in the allotted time. Her failure meant she could not complete the rest of the training course.
When Insp Bamber applied to retake the shield run, it is alleged that one of her colleagues remarked: 'She's got no f****** chance.'
In fact she did pass at the second attempt several months later – after Greater Manchester Police made it easier by raising the time limit to three minutes.

The tribunal heard that on the second occasion, Insp Bamber gave herself the equivalent of an extra 20 seconds by starting at the front of the group. Previously, she had started at the back but the clock starts when the first person sets off.

In her ruling, Judge Hilary Slater said Insp Bamber's claims of indirect sex and age discrimination were 'well-founded'.
Noting that the officer had 'suffered humiliation at being sent away from the course', Judge Slater added: 'The tribunal concludes that the claimant was put at the disadvantage suffered by women and persons of her age group in that she failed the test and was not able to complete the training.'
The shield run was first introduced in the Eighties when Scotland Yard used it to test the fitness of officers policing the Notting Hill Carnival. Greater Manchester Police also conducted the runs for 30 years but has now dropped them.

She thought she wouldn't have to do the test, then had to do it, and failed. When she went back to do it, they'd adjusted the system to allow her more time to finish.

I'd suggest that had they not adjusted her finishing time, there'd be less of a case. Positive discrimination is still discrimination. And I still don't see how the ruling stands up.

Everyone in the force must take the riot test, you fail and you get and opportunity to retry. Whats the issue? I don't see the sexism point (apart from the alleged comment from a colleague).

Bah, anyway