Disability in the workplace – human rights for all 

On March 21st we pause as a nation to observe and celebrate Human Rights Day. Although the date commemorates the Sharpeville Massacre in 1960, when innocent protesters were killed while demonstrating against the brutal pass laws of apartheid, today Human Rights Day is an opportunity to reflect on the protection of all our human rights and to reassert our commitment as South Africans to a society that respects the dignity of all its members.

Constitution

We are privileged and proud to possess one of the world’s most progressive and inclusive Constitutions. Chapter 2 guarantees the rights of all citizens. These rights include:

  • Equality – everyone is equal before the law and has the right to equal protection and benefit of the law
  • Human dignity – everyone has inherent dignity and is entitled to have their dignity respected and protected
  • Freedom of movement and residence – everyone has a right to freedom of movement and to reside anywhere in the country
  • Language and culture – everyone has the right to use the language and to participate in the cultural life of their choice
  • Life – everyone has the right to life

(Source)

Fundamental to these rights is the right to freedom from discrimination. Section 9 of the Constitution guarantees we cannot be discriminated against on the basis of certain social criteria, such as race, gender, sexual orientation, etc. This includes disability, which is specifically mentioned. People living with disabilities are assured of the right to be treated equally and to enjoy the same rights as everyone else. Furthermore, people with disabilities have been disadvantaged in the past, and are therefore entitled to affirmative action to redress this imbalance.

The Constitution is the framework for policy-making. However, it is not an implementation tool. Realising the rights and provisions set out in the Constitution requires effort on the part of those agencies and entities in society, including companies, responsible for ensuring the Constitution is upheld in daily life. So how do you as an employer ensure that all your employees, able-bodied and disabled alike, are treated equally and with dignity?

White Paper on the Rights of Persons with Disabilities 2016

Last year the government published a White Paper on the Rights of Persons with Disabilities. According to the Minister Of Social Development, Ms Bathabile Dlamini, “The White Paper is a call to action for government, civil society and the private sector to work together to ensure the socio-economic inclusion of persons with disabilities…to create a caring and inclusive society that protects and develops the human potential of its children, a society for all where persons with disabilities enjoy the same rights as their fellow citizens, and where all citizens and institutions share equal responsibility for building such a society.”

The White Paper seeks to operationalise the principles of the Constitution and the Employment Equity Act, and to speed up the pace of transformation as it pertains to people with disabilities. It lays out an Implementation Matrix for public, private and civil society sectors, designed to improve the quality of life of people with disabilities and their families.

The White Paper, which references the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)(2007), comprises nine strategic pillars which each contain Directives. Each Directive is assigned a duty-bearer whose role it is to end systemic discrimination and exclusion and to supervise the implementation of the White Paper. Each pillars has outcome indicators that will be carefully monitored.

Code of Good Practice

The Employment Equity Act 1995 specifies the criteria you should use when assessing the needs of your employees with disabilities. The diagnosis of the condition is irrelevant; it is not necessary for you to know the medical history of the disabled person. It is the effect of the disability on the person relative to the working environment that matters.

Disability is defined as:

  • long-term (more than 12 months in duration; less than that is considered an injury and not a permanent impairment) or recurring (i.e., certain progressive conditions recur acutely at intervals and the impact on the individual fluctuates, but the underlying condition is constantly present)
  • a physical or mental impairment (physical = loss of a body function or sensory deprivation; mental = condition that interferes with thought processes or judgement)
  • substantially limiting, which means that without ‘reasonable accommodation’ by the employer, a person would be unable to do the job at all or would be significantly limited in doing it

Reasonable accommodation

It goes without saying that it is illegal to discriminate against a person with disabilities at the recruitment and selection stage. Candidates should be judged solely on their experience, capabilities and competence to do the job. You may, however, ask a candidate with a disability what modifications, if any, they may require in the workplace if they are successful. This is known as reasonable accommodation: “…the necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms according to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)(2007).” (source) As an employer, you are entitled to adopt the most cost-effective means of accommodation, consistent with effectively removing the barrier to performing the job and allowing the employee to enjoy equal access to the benefits and opportunities of employment.

Reasonable accommodation might include:

  • Adapting existing facilities to make them accessible, e.g., building a ramp to ensure wheelchair access and making toilets accessible
  • Acquiring new equipment or adapting that already in use, e.g., computer hardware and software, including voice input/output software for people with sensory impairments
  • Re-organising workstations to allow people with disabilities to work effectively and efficiently
  • Changing training and assessment materials, processes and systems to be accessible, e.g. providing materials in electronic format, Braille or on tape for people with visual disabilities, and ensuring that external training sessions are held at suitably accessible venues
  • Restructuring jobs so that non-essential tasks can be delegated, e.g., removing routine but physically demanding filing from the job description of a person who uses a wheelchair and reassigning them amongst other employees, perhaps on a rota basis
  • Adjusting working time and leave
  • Providing specialised supervision, training and support in the workplace, e.g., interpreters for the deaf, readers to the blind, job coaches for people with intellectual disabilities or personal assistants for people with physical disabilities. This support may be temporary or permanent

Do you need help?

As an employer, we know you want to do all you can to demonstrate good practice and support the rights of people living with disabilities. But implementing suitable policies and procedures in your organisational environment can be fraught with difficulty. EOH Human Capital Solutions is an expert in Human Resources and related services. We can assess your adherence to the Code of Good Practice and design solutions appropriate to your organisation.

Contact us today on 012 940 6300 or hcs@eoh.co.za and discover how we can help you.

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