Dr. Eilionóir Flynn:

In that case the Supreme Court was concerned that the requirement of employers to reasonably accommodate potential employees with disabilities could constitute an attack on the constitutional right to private property because employers might be required to do more to accommodate employees with a disability. However, that does not really address the reasonableness criterion associated with the concept of reasonable accommodation, so in my view, it does not constitute an attack on the right to private property because one is not required to accommodate a person as one's employee in all circumstances. Consider the circumstances of an employer who runs a very small business where an employee needs some very sophisticated type of technology or complete revamp of the office space that is not feasible. It was never intended to apply to this. In that case, the Supreme Court rejected the standard that had been suggested in the employment equality legislation regarding reasonable accommodation. The definition included the criterion that one had to reasonably accommodate a person unless doing so represented a disproportionate or undue burden. In response, when the Parliament legislated again, it came up with the much less stringent criterion whereby one had to reasonably accommodate a person with a disability unless it cost more than a nominal cost. Most costs are higher than a nominal cost.

However, since that time, of course, the EU has legislated on this with its framework directive on employment. The EU has reimposed the standard of the disproportionate or undue burden. Notwithstanding the Supreme Court's decision, Ireland has changed its laws to reflect the EU position. However, that applies only to employment, of course, and not to goods and services. In the UN Convention on the Rights of Persons with Disabilities, the standard of reasonable accommodation is the same. It is a matter of a disproportionate or undue burden, regardless of whether one is an employer or a provider of goods and services. The concern is that we could have a constitutional barrier. Does it require an amendment to the Constitution for Ireland to be able to ratify the UN Convention on the Rights of Persons with Disabilities? I hope it does not because that would delay the ratification process quite significantly. Perhaps we would not be in a position to ratify at the end of that process.