Your legal obligations: Employing people with disability
According to Stats NZ, about one in six New Zealanders has a disability and of those, Whaikaha, the Ministry of Disabled People, report that only 44.7% of working-age New Zealanders with disabilities are employed, compared to 84.1% of those without disabilities.
In a market where employers are competing for top talent, there is an often overlooked and undervalued pool of talent open to inclusive workplaces.
We’ve asked an employment lawyer for insights into equal opportunity and the reasonable accommodations that can help you support and harness the potential of every employee.
What is disability?
The Human Rights Act 1993 provides a broad definition of disability, which includes any illness, as well as physical, mental and intellectual disabilities or impairments.
Any of these disabilities may be caused by accident, trauma, genetics or disease. They may be temporary or permanent, visible or invisible, but they are all protected from discrimination.
Understanding disability discrimination
Disability discrimination happens when people with a disability are treated less favourably than someone without a disability. This kind of discrimination is prohibited under the Human Rights Act 1993, and in an employment law context, could give rise to a personal grievance claim under the Employment Relations Act 2000.
Jaenine Badenhorst, Director at Empower Law, explains that discrimination may be direct or indirect. In an employment context, direct discrimination is when someone is disadvantaged, specifically because they fall within a certain category and might include:
Refusing or failing to employ a person because of their disability, even though it has no impact on their ability to meet the inherent requirements of the job
Giving an employee less favourable terms of employment, limiting access to benefits, or failing to consider them for promotion because of their disability
Firing an employee because of their disability
Causing an employee to retire or resign because of their disability.
Badenhorst says indirect discrimination is more nuanced, for instance when workplace practices or policies might not seem discriminatory on the surface, but still have a discriminatory effect and prevent a certain group of people from participating in the workforce.
“Indirect discrimination is less obvious and could even be unintentional. For example, if a company had a policy to only promote individuals who work full time, the effect of the policy might disadvantage women, even though the policy or practice is not aimed at women or intended to be discriminatory. This is because in our society women are more often taking on caregiving responsibilities, and therefore more often the ones working part-time, creating unintentional discrimination and bias in the workplace.”
Badenhorst says that while the disadvantageous treatment of employees with disability is generally unlawful, there are some exceptions.
“An employer can treat an employee differently based on their disability if the nature of the duties or the work environment will result in an unreasonable risk of harm to the employee or others,” explains Badenhorst.
Employers must first consider whether reasonable accommodations are possible. Reasonable accommodations are those which do not result in unreasonable disruption to the business (taking into account the size of the business, its resources, and the nature of its operations).
What are ‘reasonable accommodations’?
When an employer is made aware of a person’s disability, they must take reasonable accommodations so that the person with the disability has an equal opportunity to participate in employment.
“Reasonable accommodations are when employers make changes or provide support so that a person can participate in employment, despite their disability. Reasonable accommodations means making changes to the type of work they do, where and how they work, installing a wheelchair ramp, providing protective equipment or assistive technology,” says Badenhorst.
Employers are not required to go beyond what is reasonable in the circumstances (i.e. where accommodations will result in a disproportionate or undue burden on the employer).
What is reasonably required of an employer will depend on the particular circumstances of each situation, taking into account things like the amount of disruption and cost of implementing an accommodation, as well as the resources the employer has access to.
What questions can you ask?
Medical information is personal information. Badenhorst says that candidates do not have to volunteer information about their disability if it is not relevant to their ability to fulfil a role effectively and safely.
Some employment agreements include a condition of employment that the employee has disclosed all information material to the decision to employ them, including the employee’s ability to perform the role. In this situation, an employee may need to disclose their disability if it could impact their ability to perform the role to ensure this condition is complied with.
There may also be some disabilities that should be disclosed from a health and safety perspective.
Employers have an obligation to ensure, within reason, the health and safety of their workers, and employees also have obligations to take care for their own health and safety.
To ensure these obligations can be complied with, it may be necessary to disclose a disability if the disability could impact on these obligations.
As an employer, you are only entitled to ask about a candidate’s or employee’s disability for a lawful purpose. Badenhorst says this might be to understand what support they would require to perform the role.
“If an employer asks broad, non-specific questions about a candidate’s health it indicate an intention to unlawfully discriminate and the candidate is not required to answer any unlawful questions,” says Badenhorst. This will likely be inferred if there is no legitimate reason to ask the question.
Where can you go for help?
Hiring people with disabilities presents a great opportunity to businesses when employers can see the potential people with disability bring and understand their legal obligations.
On Employment New Zealand, there is information about employing people with disability, including details about reasonable accommodations.
The Office for Disability Issues also provides guidance and resources, such as disability responsiveness training for your employees. It also includes information to make it easier to hire people with disability, so that you can create a more inclusive workplace that welcomes everyone.
Information provided in this article is general only, does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.