Your legal obligations: Employing people with disability

About one in five New Zealanders has a disability and with only 41.5% of working-age New Zealanders with disabilities employed. compared to 80% of those without disabilities, they’re an undervalued source of talent for workplaces of all sizes.

In a market where employers are competing for top talent, inclusive workplaces have a competitive edge. 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.

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.

Disability discrimination happens when people with a disability are treated less fairly than those without a disability. This kind of discrimination is prohibited under the Human Rights Act 1993.

Dilshen Dahanayake, Solicitor, MinterEllisonRuddWatts, explains that discrimination may be direct or indirect. In an employment context, direct discrimination 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.

Dahanayake says indirect discrimination is more nuanced.

“It means workplace practices or policies that at first glance do not seem discriminatory but prevent a certain group of people from participating in them,” he says. “An example in this context would be a workplace only being accessible by stairs, which indirectly discriminates against people who use wheelchairs.

Dahanayake says that while disadvantageous treatment of employees with disability is generally unlawful, there are some exceptions.

“One of the exceptions is where it is not reasonable to expect the employer to provide special services or facilities that the employee needs to perform their role satisfactorily,” he says.

“Another exception is where, because of the work environment, the individual’s performance of their role could create an unreasonable risk of harm to themselves or others, and there are no reasonable measures the employer could take to reduce the risk.”

This could include the risk of the individual infecting others with an illness, for example.

“Disability discrimination that would otherwise be disadvantageous may also be lawful where the role is for domestic work in a private household,” adds Dahanayake.

Employers are required to make reasonable accommodations so that a person with a disability can perform the inherent requirements of the job.

“Examples of such accommodations might be providing training to other staff, such as disability awareness training or training on how to communicate with deaf or blind employees, or making physical modifications to the workplace to increase accessibility,” says Dahanayake.

As the Human Rights Act 1993 doesn’t define what is ‘reasonable’, this will depend on particular circumstances, such as the adjustments required, the cost and the size of the employer.

Dahanayake says that as medical information is personal information, candidates are generally not required to disclose it if they are not asked to.

“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,” says Dahanayake. “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 obligations to ensure, as far as reasonably practicable, the health and safety of their workers,” says Dahanayake. “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. Dahanayake says this might be to understand what support they would require to perform the role.

“Importantly, it is unlawful for a prospective employer to ask a job applicant any question that indicates, or could reasonably be understood as indicating, an intention to unlawfully discriminate against the job applicant,” adds Dahanayake. “This will likely be inferred if there is no legitimate reason to ask the question.”

Hiring people with disabilities presents 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.