Bermuda's human rights legislation has always provided disabled persons with protection from discrimination.
The Human Rights Act 1981 (the "Act") 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 could be proved.
The legislation provided that the relevant Minister would at some stage provide rules by which an employer and 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 had been 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 (the "Amendment Act") 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 employee or prospective employee shall not be disqualified for employment by reason of his/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, extensive, or where the modification would unreasonably alter the nature or operation of the employer's business.
'Modification', for the purposes of the schedule to the Amendment Act, 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 of relevance and 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 very survival of the employer's business. To determine such implication, 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 very costly modification for a small employer and be deemed unreasonable may not be unreasonable for a larger employer. Equally, if the modification requires the employer to fundamentally change 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 upon 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, save as provided for, an employer is not required to lower production standards, whether qualitative or quantitative -- and that 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, Bermuda Police Service and 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 per cent operational efficiency.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
