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Can a qualified applicant with a disability be overlooked in the recruitment procedure if the employer has not established the working conditions they need?

Generally not. A person may not be treated less favourably because of their disability upon the establishment of conditions for access to employment, recruitment conditions and selection criteria (clauses 2 (2) 1) and 2) of the Equal Treatment Act).
The meaning of disability defined in § 5 of the Equal Treatment Act must be understood in a broader sense than that set out in the Social Benefits for Disabled Persons Act. The human rights positions of international and European institutions, including the recommendations and rulings of the European Court of Human Rights, must also be taken into account in the interpretation of a disability.

In the Equal Treatment Act, disability is defined first and foremost as an impediment that restricts a person’s participation in social and working life, including chronic illnesses (§ 5). Whether or not the disability has been diagnosed by a doctor is not of decisive importance.

Fewer people with disabilities apply for and get jobs, as workplaces are often inaccessible and work arrangements are not adapted to their specific needs, making it impossible for them to work. However, the low employment rate of disabled people is an inequality arising from disability. In order to reduce this, the state has established the employer’s obligation to take the appropriate measures necessary in a particular case that allow a disabled person to access the workplace, to participate in work and to receive promotion or training (subsection 11 (2) of the Equal Treatment Act).

Grant of preferences to persons with disabilities, including creating a work environment suitable for persons with special needs linked to disabilities, does not constitute discrimination (§ 11 of the Equal Treatment Act). An employer has the right to not implement the measures only if they would impose a disproportionate burden on the employer (subsection 11 (2) of the Equal Treatment Act). The employer’s financial and other expenses, the size of the company or institution and the possibilities to obtain funding are also taken into account.

However, according to international and Estonian Labour Inspectorate practice, failure to take the necessary measures is deemed to be discrimination on the grounds of disability, unless the employer can prove that the necessary measures would cause disproportionate costs to the employer. Subsection 101 (1) of the Occupational Health and Safety Act of the Republic of Estonia also requires employers to establish suitable working and living conditions for employees with disabilities.

The Office of the Gender Equality and Equal Treatment Commissioner has developed recommendations for employers which both public and private employers should bear in mind to ensure that people with disabilities have a real chance of applying for and being selected for jobs, working and training.
Clauses 2 (2) 1) and 2) and §§ 5 and 11 of the Equal Treatment Act
§ 101 of the Occupational Health and Safety Act

This explanation does not constitute legal aid in a specific case. Therefore, if you feel that you have been treated unequally, but you did not find a solution to your problem in this article, or if you have a question, please contact the Equality Commissioner by e-mail at avaldus@volinik.ee or telephone +372 626 9059. The anonymity of the person is guaranteed when contacting the Commissioner.