The revised Draft Code of Good Practice on the Employment of Persons with Disabilities ("the Code")was published by the Department of Labour on 12 June 2015 and was open for public comment until 12 July 2015.  The Code is a clear indication from the Department of Labour that there is an increased focus on the employment of disabled persons in the workplace.  New inclusions in the draft Code are:

Reasonable accommodation for people with disabilities

  • Employers are obliged to reasonably accommodate persons with disabilities within their organisation.  The obligation however, only arises when a job applicant / employee voluntary discloses their disability or when the disability is reasonably self-evident to an employer.
  • An employer is not obliged to accommodate a disabled employee where such accommodation would impose considerable difficulty or a substantial expense ("unjustifiable hardship") on its business. Employers are encouraged to adopt the most cost-effective means.  Reasonable accommodation may be temporary or permanent and may include the following:
  • re-organizing work stations; and
  • adapting existing equipment or acquiring new equipment.
  • The issue will always turn on what is reasonable in the circumstances.  The result will be determined by the facts and companies are encouraged to take advice when confronted with these issues.

Recruitment

  • Employers advertising jobs are encouraged to include sufficient detail regarding the inherent requirements of the job to enable potential applicants with disabilities to make an informed decision before applying for the job.
  • Subject to reasonable accommodation, employers ought to apply the same criteria applicable to all applicants when testing their ability to perform job functions to persons with disabilities.
  • Employers have the right to offer conditional employment to persons with disabilities subject to medical or functional testing to determine the applicant's ability to perform the essential functions of a specific job.  An employer may withdraw the job offer if the testing shows that the accommodation requirements would create an unjustifiable hardship.
  • An employer may not employ or retain disabled employees on less favourable conditions due to their disability. 
  • Clients must be alert to the fact that if they deny employment to a person only because that person is disabled without first checking that they are unable to perform the task or work properly in the environment because of the disability, such exclusion may constitute discrimination.  Companies are advised to carefully consider their positions when selecting candidates for vacancies.

Retaining persons with disabilities

  • In the event that an employee becomes disabled during his/her employment, the employer is then obliged to consult with the employee in order to assess if the disability can be reasonably accommodated.

Disclosure of Disability

  • An employer is not obliged to accommodate an employee with disabilities should it not be aware of the disability.  In other words, the obligation is on employees to inform their employers of disabilities (unless they are obviously visible). However in these circumstances, employers must still deal with the employee fairly and dismissal may not be the  appropriate remedy.