Human rights legislation has always provided disabled persons with protection from discrimination.

The Human Rights Act 1981 makes it unlawful for an employer to discriminate against a disabled employee on the basis of disability unless 'unreasonable hardship' on the part of the employer can be proved. The legislation provided that the relevant minister would at some stage set down rules by which an employer and an employee would be governed to provide guidance about how unreasonable hardship could be determined. Amendments to that particular section of the act were made, but no rules were implemented by the minister and the only guidance provided to employers and employees was a mix of general principles under the human rights umbrella and the common law.

Enter the July 2011 amendment to the Human Rights Act. The Human Rights (Unreasonable Hardship) Amendment Act 2011 amends the need for specific rules (the minister retains the ability to give general directions of a policy nature) and sets out the definition of hardship as a schedule to the amendment act.

The amendment act further provides that a disabled or prospective employee shall not be disqualified for employment by reason of his or her disability if it is possible for the employer (or prospective employer) to modify the circumstances of the employment so as to eliminate the effects of the disabled person's disability in relation to that employment, without causing unreasonable hardship to the employer (or prospective employer).

'Unreasonable hardship' arises in relation to the modification being costly, disruptive or extensive, or where the modification would unreasonably alter the nature or operation of the employer's business. For the purposes ot the schedule, 'modification' means changes to any aspect of the employment connected to the work itself, the place of work, apparatus or facilities to enable the disabled person to carry out the employment.

It is not just a question of determining that these modifications should be made; determinations will be made on a case-by-case basis with three factors being taken into account.

The first factor to be considered relates to the composition of the workforce:

  • the number of employees;
  • the structure of the workforce;
  • the number of specialised jobs performed by employees;
  • the number and type of facilities; and
  • the employer's turnover.

The second factor is the financial implications relating to the employer's workplace, including the nature and cost of the modifications, which will be considered unreasonable if they affect the survival of the employer's business. To determine such implications, the capital and operating costs of the employer's business and the costs of restructuring (if applicable) will be taken into account.

This second factor will also include consideration of:

  • the structure and functions of the workforce;
  • the geographical distance between the main place of employment and an alternative regional place of employment; and
  • the administrative and fiscal relationship involved in making the modification and the availability of alternative funding (grants and charitable gifts).

What may be a costly modification for a small employer (and thus deemed unreasonable) may not be unreasonable for a larger employer. Equally, if the modification requires the employer to change fundamentally the type of business that it does, it may also be deemed to be unreasonable.

The third factor for consideration is the impact of safety concerning the workplace and the impact on the disabled employee and the general public.

For the purposes of the amendment act, an employee who is unable to perform essential functions of a job (with or without reasonable adjustment) is not a qualified employee. Equally, except where provided for, an employer is not required to lower production standards, whether qualitative or quantitative; this principle is applied uniformly to employees with or without disabilities. However, an employer may have to provide some reasonable adjustments to enable a disabled employee to meet production standards.

The amendment act applies to all sectors of the working community, although there are special provisions in relation to the Bermuda Fire and Rescue Service, the Bermuda Police Service and the Department of Corrections. These provisions provide that it is unreasonable for these services to make adjustments to the public services that they provide if such adjustments cause operational staffing levels to fall below 90% operational efficiency.

For further information on this topic please contact Kelvin Hastings-Smith at Appleby by telephone (+1 441 295 2244), fax (+1 441 292 8666) or email ([email protected]).