The Employment Equity Act (EEA) – section 2(1) – prohibits unfair discrimination against individuals who suffer from disabilities. The Act specifically states the following:
“No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds including race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability [my emphasis], religion, HIV status, conscience, belief, political opinion, culture, language, and birth.”
Persons with disabilities are beneficiaries of Affirmative Action measures as they are classified as designated groups.
Code of Good Practice on Key Aspects of Disability in the Workplace
In 2001, then Minister of Labour – Membathisi Mdladlana – published the Code of Good Practice on Key Aspects of Disability in the Workplace. This Code fleshes out areas of the EEA which are described in very general terms. For example, it provides clarity on what it considers to be a disability. According to the Code, to qualify for protection under the EEA an employee’s disability must be:
- Long-term or recurring, in other words it must have lasted (or is likely to last) at least 12 months and/or happens on a frequent basis,
- The disability must cause physical (e.g. loss of a body function) or mental impairment (e.g. affecting a person’s thought processes), and
- The disability must substantially limit a person’s ability to hold down a form of employment.
How does one quantify “substantially limit”?
Substantial limitation may be described as any condition or situation that without help/adjustment or reasonable accommodation that person may struggle to function.
In this day and age, many limitations can be overcome with the use of technology. For example, a person who has functional sight – but is not deemed to be competent to possess a drivers licence – will be able to get around with Uber. He or she does not fulfil the job requirement of having one’s own drivers licence and car but the driver service fulfils the ultimate goal of this requirement. And if they display all the inherent qualities and skills attendant to the particular job that they are applying for, shouldn’t they be given a chance to show a potential employer what they can do?
Employers are obliged to promote equal opportunities for all employees in the workplace. Section 15 (AA Measures) requires employers to ensure equitable representation of suitable qualified people from the designated groups (Blacks, Women and persons with disabilities). According to section 20(3) of the EEA, a person may be deemed suitably qualified if they have one or a combination of factors, i.e. qualification, prior learning, experience and potential to acquire skills within reasonable time.
According to section 22 of the Constitution, everyone has the freedom to choose how they want to earn an income. This section states:
“Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.”
Obviously, if a person doesn’t satisfy the inherent requirements of a job – for example a female actor can’t turn around and say that she is being denied their section 22 rights because she was turned down for a stage part as a male character – every effort should be made to reasonably accommodate a person that has a disability to facilitate them fulfilling the job that they want to do.
The issue of Uber highlights how the world of work is changing. No longer are people who do work for you merely employees. They could be contractors, freelancers or part-timers. We’ll be discussing this issue – as well as other related questions – at our Employment Conference in Johannesburg on 8 March 2018. To be put on the list to be notified when bookings open, click here.
Kind regards,
Thembi