The Employment Equity Act 55 of 1998, as amended by Act 47 of 2003 (“the Act”), is a piece of legislation primarily aimed at tackling, and removing, unfair discrimination while encouraging equal enjoyment of rights and responsibilities amongst employees in the workplace. Persons with disabilities fall under the “designated groups” category and are afforded protection under the Act. The Act also aims to “implement affirmative action measures to redress the disadvantages in employment experienced by designated groups…”.

Section 54 of the Act confers powers to the Minister [of Employment and Labour] to issue a Code of Good Practice, which is an enabling Act that establishes, amongst other things, the particular measure to be taken in relation to persons with disabilities, including benefit schemes. It is basically a guide for employers and employees to follow in order to encourage equality in the workplace. The Code of Good Practice tackles unfair discrimination.

UNFAIR DISCRIMINATION OF PERSONS WITH DISABILITIES – THE CODE OF GOOD PRACTICE

Section 5.1 of the Act defines “discrimination on the basis of disability” as “any discrimination, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on the equal basis with other, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation”. It is the employer’s duty to accommodate the needs of employees with disabilities to eliminate unfair discrimination and enable the employee to perform their essential duties at work. However, there are many different forms of disabilities (physical or mental, or both) and it can be difficult for an employer to know how to be accommodative. 

Section 5.3 of the Act defines persons with disabilities as anyone who has “long term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in employment”. This means that long term or recurring impairment must impact the individual in the workplace. Therefore, while it is not an obligation for persons with disabilities to disclose their impairment to their employers, it may be necessary to do so if reasonable accommodation is required by the employee in the workspace. Sometimes, it may also be necessary to conduct a medical and psychometric test (in compliance with the Act) to determine an employee's health status where it is relevant and appropriate to the work duties to be carried out by the employee. Other times, the employer must consider the health and safety measures that must be implemented to ensure the safety of all employees, including persons with disabilities.

CONCLUSION

There are many considerations which may become relevant when tackling unfair discrimination against persons with disabilities in the workplace. The best way is to address social stigmas and negative myths about persons with disabilities in the workforce. Persons with disabilities can also offer and contribute valuable skills, talent, and experience to the workforce.

Written by Yasmina Griesel, Candidate Attorney, SchoemanLaw