Disability and your rights at work: What you need to know
If you’re among the one in six New Zealanders with a disability, your employment rights are protected by law.
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.
We’ve asked an employment lawyer for insights into equal opportunity and the reasonable accommodations that employers may need to make to ensure your rights are protected.
What is disability 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.
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 and is when workplace practices or policies do not seem discriminatory on the surface, but prevent a certain group of people from participating in them.
“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 end up disadvantaging woman, even though the policy is not focused on gender 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 disadvantageous treatment of employees with disability is generally unlawful, there are some exceptions. One exception is when it is not reasonable to expect the employer to provide special services for the employee to perform their role, and the other is because of the work environment.
“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’?
If you’re the best person for the job, your employer must make workplace changes or ‘reasonable accommodations’ if you need them to perform the inherent requirements of the job.
“Examples of such accommodations might be making changes to an employee’s duties or role, making changes to the work environment (i.e. installing a wheelchair ramp) or providing protective equipment or assistive technology,” says Badenhorst.
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.
Do you have to disclose a disability?
Medical information is personal information. Badenhorst says that you do not have to volunteer information about your disability if it is not relevant to your ability to fulfil a role effectively and safely.
“If an employer specifically asks a candidate about their health, the candidate must respond honestly, in so far as their disability could affect their work,” says Badenhorst.
“If the employer asks broad, non-specific questions about a candidate's health, it could indicate an intention to unlawfully discriminate. In this situation, you are not required to answer unlawful questions.”
However, a job applicant who has a disability and chooses not to disclose that disability should be careful not to mislead a prospective employer about their ability to perform the role they have applied for. Whether or not you should disclose your disability will likely depend on what the disability is, and whether the disability is likely to impact your performance of the role.
There may also be some disabilities that should be disclosed from a health and safety perspective. Employers have obligations to ensure, within reason, the health and safety of their workers, and employees also have an obligation to take care of their own health and safety.
To ensure these obligations can be complied with, it may be necessary for you to disclose a disability if the disability could impact on these obligations.
A prospective employer can only ask you about your disability for a lawful purpose, such as tryingto understand what support you would require to perform the role.
Where can you go for support?
If you feel you’ve been discriminated against because of a disability or reasonable accommodation request, you can seek help from the Human Rights Commission.
If you are a current employee and you are unable to resolve your grievance informally with your employer, you can either make a complaint with the Human Rights Commission or bring a claim in the Employment Relations Authority.
The Ministry of Disabled People also offers Modification Grants, which may help people with disability to pay for workplace changes or equipment that makes it easier to stay in or to get work.
A person with a disability has a right to the same employment opportunities as a person without a disability. If you feel that you’ve been discriminated against, your rights are protected by the law.
Information provided in this article is general only and it 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.
