The trend towards the social inclusion of people with disabilities is reflected in the recent repeal of the Disabled Persons Employment Promotion Act 1960, removing the exemptions which have historically allowed sheltered workshops to pay their employees at reduced rates. In the future that will only be possible where individual exemptions, applicable to all workplaces, are obtained by their employees under the Minimum Wage Act 1983.
Given such exemptions and the opportunity to apply for jobs elsewhere, it might be expected that many of the approximately 3700 people now working in such settings will opt to work in the community if they can. This migration is likely to lead to an increased awareness of the obligations employers already have to accommodate the needs of employees with disabilities.
Discrimination on the basis of disability is prohibited by both the Employment Relations Act 2000 (ERA) and the Human Rights Act 1993. An employee who is discriminated against may pursue a remedy under either Act, whereas a rejected job applicant must rely on the Human Rights Act, no employment relationship having been created (section 6 ERA 2000).
Complaints under the Human Rights Act are dealt with by the Human Rights Commission, which will investigate and try to mediate a settlement where appropriate. If mediation is unsuccessful it may refer the complaint to the Director of Human Rights Proceedings, who may then pursue it before the Human Rights Review Tribunal. These services are provided at no cost to the complainant.
Complaints under the Employment Relations Act must be litigated in the same manner as any other personal grievance. Complainants may qualify for legal aid, but will usually have to repay the Legal Services Agency from any settlement sum received.
Section 29 Of The Human Rights Act 1993
The duty to accommodate disabled employees is found in section 29 of the Human Rights Act, which provides that nothing in section 104 of the Employment Relations Act, prohibiting discrimination, prevents different treatment based on disability if either of two situations exists.
The first is where the employment position is such that the person could perform their duties satisfactorily only with the aid of special services or facilities, which it is not reasonable to expect the employer to provide.
The second is where the person could perform their duties only at the risk of causing harm to themselves or others and it is not reasonable either to take the risk or to take measures to reduce it to a normal level.
A duty is accordingly imposed on employers to accommodate disabled employees' special needs by providing special services or facilities and/or taking steps to reduce any associated risk of harm, but only to the extent it is reasonable to expect them to do so.
Just how the reasonableness of an employer's actions and the circumstances in which different treatment will be justified are to be assessed for these purposes is not at all clear. Neither Act provides any guidance as to the factors that should be taken into account and neither defines the key terms "services" or "facilities".
Case law does little to assist, as section 29 has seldom been considered in either the employment or human rights jurisdictions. The extent of the legal obligation to provide special services or facilities, in the absence of risk, has yet to be considered in any reported decision.
This is perhaps surprising; given the 413,200 New Zealanders aged 15-64 who reported some form of disability in the 2001 census, and indications that half of them required assistance as a result. Disability is very broadly defined, for employment purposes, by section 21(1) of the Human Rights Act. It includes most forms of physical and psychological impairments, including illness, which must be of a permanent or long-term nature (NZ Amalgamated Engineering Printing & Manufacturing Union Incorporated & Ors v Air New Zealand Ltd & Anor  1 ERNZ 614 ).
Case law does establish that the risk of harm to the employee will justify discrimination on the basis of disability where that risk is significant, appreciable or substantial and it is not really possible or reasonable to expect the employer to take the steps that are required to reduce it: Proceedings Commissioner v Canterbury Frozen Meat Co Ltd (Complaints Review Tribunal 19-98, 26 November 1998). The acceptable level of risk is accordingly not high, which is consistent with normal health and safety requirements.
The Position Overseas
Similar duties to accommodate disabled employees are found in other jurisdictions, including in the United Kingdom, Canada, the United States of America and Australia. It is likely that cases in those jurisdictions will be of assistance if and when the New Zealand courts are called upon to decide how section 29 should be applied in a particular case.
The United Kingdom's Disability Discrimination Act 1995 is perhaps helpful in that it provides examples of the kinds of accommodations that might reasonably be expected. They include making adjustments to premises, allocating duties to another person, transferring the employee to an existing vacancy or different place of work, altering their working hours, allowing them to be absent during working hours for rehabilitation, providing training, acquiring or modifying equipment, and providing supervision.
The Act also sets out particular factors which must be taken into account when deciding whether or not it is reasonable to expect particular steps to be taken in any case. They include the extent to which the step would prevent the effect in question, the extent to which that step is practicable, the associated costs to the employer, the extent to which it would disrupt activities, the extent of financial and other resources and the availability of assistance to take the required measures.
It is clear that the expectation is much higher in respect of a large and well-resourced organisation than it is for a small employer with few staff. The duty is to do only what is reasonable in all the circumstances of any particular case.
A recent decision of the House of Lords, Archibald v Fife Council  IRLR 651, considered the extent of the duty to accommodate and when it arises. As Lord Rodger of Earlsferry explained in his opinion:
In broad terms, the idea is that, if an employer leaves a disabled person at a substantial disadvantage from his arrangements when he should have taken steps to shield her from that disadvantage, he discriminates against her.
In that case, an employee had become disabled in a way that made it impossible for her to do her job as a road sweeper. Although the council retrained her for an office position and considered her applications, they were always unsuccessful. Eventually the council dismissed her on the grounds that she was unable to perform her duties as a road sweeper.
Their Lordships held that Mrs Archibald's employment contract included, as part of the employer's arrangements, an implied term that she was liable to be dismissed if she became unable to carry out the essential functions of her job. The question was whether that aspect of the employment arrangements placed her at a substantial disadvantage compared to other employees who were not disabled. Clearly it did, as they were not unable to do their jobs and hence not liable to be dismissed.
Because the Act then imposed a duty to prevent that term of her employment contract from placing her at that substantial disadvantage, the council may well have been obliged to put her into another job that she could do, rather than simply letting her apply for it in competition with others. The case was accordingly referred back to the employment tribunal to decide whether or not that would have been a reasonable step in all the circumstances of the case.
As Baroness Hale of Richmond explained in her opinion, the Disability Discrimination Act does not regard the differences between able and disabled people as irrelevant in the sense that sex or race is treated as irrelevant when deciding whether someone has been discriminated against on those grounds.
Treating someone more favourably on the basis of their sex or race is prohibited because doing so discriminates against people of the opposite sex or a different race, who should be treated equally. By contrast, the duty to accommodate the special needs of disabled people necessarily entails an element of more favourable treatment. The result is that some degree of positive discrimination may be called for.
While it should not be supposed that the law in the United Kingdom is also the law in New Zealand, this case and others under the Disability Discrimination Act offer useful guidance to our courts as to how the duty to accommodate employees' disabilities should be approached. At the moment, that would appear to be a fairly open question.
© Wynn Williams & Co