Marginalised: People with disabilities are seen as little more than charity cases, as if disability constitutes little more than a medical challenge that can be solved by the provision of grants. Picture: Cindy Waxa/African News Agency (ANA)
We must note that people with disabilities fall within the definition of designated groups with regard to employment equity. Our Labour Ministry has outlined that all employers should try to reach a target of at least 3% of their workforce coming from the disabled community. 

These employees, like all others, must be protected from direct or indirect discrimination. All employment policies must take into account the disability and protect disabled employees from any discrimination of any nature. There cannot be disproportionate income and the employment situation should reflect the code of good practice on the employment of people with disabilities. Disabled workers must be accommodated in the workforce as smoothly as possible.

When disabled individuals are interviewed for positions they must be treated on an unbiased and objective level and the interviewer must avoid any sort of discriminatory attitude at all times. It is recommended that a disabled person who is able to fulfil the functions of a particular job should be treated more generously and would in essence move to the front of the queue for the position. Interviews must be conducted in surroundings ensuring that the disabled person is able to partake as comfortably as an able-bodied applicant.

Many employers would ensure that the probationary period specifically outlines that both parties would do everything in their power to ensure that the disabled applicant is able to make a success of the position. Clearly, if the disabled employee is unable to perform the essential job functions, then the report back to that employee on a regular basis during the probationary period would outline the problems experienced. Many employers might also call for medical advice to ensure that the essential criteria of the position can be performed. It would also be important for the employer to ensure that the company would be able to adapt its existing facilities to make them accessible and to adapt workstations to enhance the functionality of the disabled person.

Often, disabled employees might require further training and adjusted work time and leave arrangements. The disability of an employee (and for that matter an applicant) would be kept confidential and only brought to the attention of the management and supervisors if the person has consented in writing. Occasionally the disability might have to be brought to the attention of the entire workforce - once again with permission - to ensure it takes this into account. To allow the disabled person equal opportunity, the employer would have to ensure the employment equity plans were discussed and structure a way for the promotion of a disabled employee. Access to medical aid and other benefits must be on the same basis.

Testing, such as psychometric and other assessments, must take into account the disability of the individual and must be structured in such a way as to allow the person to partake on an equal basis. An employer’s ability to accommodate a disabled person has to be weighed up very carefully. The structure of the accommodation needs to ensure an objective approach and only if it is too onerous on the employer would the employer be able to approach the disabled person to give a full explanation as to why they could not offer the accommodation.

For instance, to accommodate a chef in a wheelchair the worktops in a kitchen can be lowered, but if that kitchen is to be shared with numerous other workers, the change would create an undue hardship for the others. In that instance it would be useful to engage with the disabled applicant with experts to see how the person could be accommodated without too much expense and discrimination against the able-bodied workers. If an employee becomes disabled during an employment relationship, the employer would undertake an exercise to ensure the employee is likewise accommodated.

If the employee could not be accommodated after a careful objective assessment and there is no alternative employment available the employment relationship can be terminated if in line with a fair procedure. If the employer does not have a fair procedure, it can be defaulted to the schedule in the Labour Relations Act. For all employers who are structuring their employment equity plans, the recruitment of disabled people would enhance the fulfilment of such plans. From experience I have noted that the employment of disabled employees creates a balanced workforce and an incredibly loyal and productive workforce.

The Commission for Employment Equity does an annual report and unfortunately the business community has still not met the expectations and the targets creating a situation where many employers are facing negative reports from the Department of Labour. The consideration of employing disabled employees would go a long way to correcting this situation.

* Michael Bagraim is a labour lawyer.

** The views expressed here are not necessarily those of Independent Media

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