Tekiyah Jorsling
Student, Hugh Wooding Law School
People with disabilities are often faced with difficulties in exercising their right to work due to discriminatory policies and lack of necessary workplace infrastructure.
The Equal Opportunity Act, Chapter 22:03 and laws pertaining to unfair dismissals however provide some protection to employees and prospective employees with physical disabilities. T&T is also a party to the Convention on the Rights of Disabled Persons which bolsters these protections as it helps inform the courts’ decisions when dealing with discrimination claims.
Equal Opportunity Act
Section 8 prevents employers from refusing to hire persons because of their disability and from intentionally setting discriminatory hiring criteria or terms and conditions that put persons with disabilities at a disadvantage.
Section 9 protects employees with disabilities from being treated unfairly in their employment contracts as well as the opportunities and or benefits afforded to other employees, such as training, promotion or use of facilities associated with the employment.
Moreover, it prevents unlawful dismissal or any detriment, such as suspension or demotion of people as a consequence of disability.
Pursuant to these protections, the Equal Opportunities Commission on an application by an aggrieved person investigates claims of discrimination. The commission first attempts to meet with the employer and employee to try to reach a mutually amicable resolution.
If conciliation is not appropriate or unsuccessful the commission will refer the matter to the Equal Opportunities Tribunal which will adjudicate on the matter and award compensation if the employee is successful.
Section 14 of the Act, however, limits an employer’s duty to reasonably accommodate employees with disabilities.
An employee or prospective employee with disabilities must be able to perform tasks reasonably necessary to the efficient performance of their job without an employer undertaking unjustifiable hardship in implementing facilities to accommodate the employee.
In determining whether an employer will face unjustifiable hardship the following criteria is usually examined:
• Financial costs of accommodation;
• Disruption of collective agreement;
• Interchangeability of work force and facilities;
• Size of operation;
• Complainant’s training, qualifications, experience and job performance.
Lastly, an employer has no duty to accommodate where due to the nature of the job or the working environment, the employee or prospective employee poses an unreasonable a risk to the health and safety of others or himself.
An employer cannot arbitrarily dismiss an employee without good reason and adherence to good industrial relations practice, such as allowing the employee the opportunity to be heard, considering alternative reasonable options, such as reassignment and giving adequate notice.
The onus lies on the employer to show that in the prevailing circumstances the dismissal was fair and executed according to procedural justice. Dismissing an employee based solely on his disability is not reasonable unless the worker is unfit to perform the job and reasonable accommodation is not possible. An employee unfairly dismissed can be re-employed by reinstatement or re-engagement depending on what is just, reasonable and practical in the circumstance.
Re-instatement puts the employee in the position he would have been had he not been dismissed whereas re-engagement allows an employee to be re-employed in a comparable form to his original job if reinstatement is not possible.
n This column is not legal advice. If you have a legal problem, you should consult a legal adviser.