Tekiyah Jorsling

Stu­dent, Hugh Wood­ing Law School

Peo­ple with dis­abil­i­ties are of­ten faced with dif­fi­cul­ties in ex­er­cis­ing their right to work due to dis­crim­i­na­to­ry poli­cies and lack of nec­es­sary work­place in­fra­struc­ture.

The Equal Op­por­tu­ni­ty Act, Chap­ter 22:03 and laws per­tain­ing to un­fair dis­missals how­ev­er pro­vide some pro­tec­tion to em­ploy­ees and prospec­tive em­ploy­ees with phys­i­cal dis­abil­i­ties. T&T is al­so a par­ty to the Con­ven­tion on the Rights of Dis­abled Per­sons which bol­sters these pro­tec­tions as it helps in­form the courts' de­ci­sions when deal­ing with dis­crim­i­na­tion claims.

Equal Op­por­tu­ni­ty Act

Sec­tion 8 pre­vents em­ploy­ers from re­fus­ing to hire per­sons be­cause of their dis­abil­i­ty and from in­ten­tion­al­ly set­ting dis­crim­i­na­to­ry hir­ing cri­te­ria or terms and con­di­tions that put per­sons with dis­abil­i­ties at a dis­ad­van­tage.

Sec­tion 9 pro­tects em­ploy­ees with dis­abil­i­ties from be­ing treat­ed un­fair­ly in their em­ploy­ment con­tracts as well as the op­por­tu­ni­ties and or ben­e­fits af­ford­ed to oth­er em­ploy­ees, such as train­ing, pro­mo­tion or use of fa­cil­i­ties as­so­ci­at­ed with the em­ploy­ment.

More­over, it pre­vents un­law­ful dis­missal or any detri­ment, such as sus­pen­sion or de­mo­tion of peo­ple as a con­se­quence of dis­abil­i­ty.

Pur­suant to these pro­tec­tions, the Equal Op­por­tu­ni­ties Com­mis­sion on an ap­pli­ca­tion by an ag­griev­ed per­son in­ves­ti­gates claims of dis­crim­i­na­tion. The com­mis­sion first at­tempts to meet with the em­ploy­er and em­ploy­ee to try to reach a mu­tu­al­ly am­i­ca­ble res­o­lu­tion.

If con­cil­i­a­tion is not ap­pro­pri­ate or un­suc­cess­ful the com­mis­sion will re­fer the mat­ter to the Equal Op­por­tu­ni­ties Tri­bunal which will ad­ju­di­cate on the mat­ter and award com­pen­sa­tion if the em­ploy­ee is suc­cess­ful.

Sec­tion 14 of the Act, how­ev­er, lim­its an em­ploy­er's du­ty to rea­son­ably ac­com­mo­date em­ploy­ees with dis­abil­i­ties.

An em­ploy­ee or prospec­tive em­ploy­ee with dis­abil­i­ties must be able to per­form tasks rea­son­ably nec­es­sary to the ef­fi­cient per­for­mance of their job with­out an em­ploy­er un­der­tak­ing un­jus­ti­fi­able hard­ship in im­ple­ment­ing fa­cil­i­ties to ac­com­mo­date the em­ploy­ee.

In de­ter­min­ing whether an em­ploy­er will face un­jus­ti­fi­able hard­ship the fol­low­ing cri­te­ria is usu­al­ly ex­am­ined:

�2 Fi­nan­cial costs of ac­com­mo­da­tion;

�2 Dis­rup­tion of col­lec­tive agree­ment;

�2 In­ter­change­abil­i­ty of work force and fa­cil­i­ties;

�2 Size of op­er­a­tion;

�2 Com­plainant's train­ing, qual­i­fi­ca­tions, ex­pe­ri­ence and job per­for­mance.

Last­ly, an em­ploy­er has no du­ty to ac­com­mo­date where due to the na­ture of the job or the work­ing en­vi­ron­ment, the em­ploy­ee or prospec­tive em­ploy­ee pos­es an un­rea­son­able a risk to the health and safe­ty of oth­ers or him­self.

An em­ploy­er can­not ar­bi­trar­i­ly dis­miss an em­ploy­ee with­out good rea­son and ad­her­ence to good in­dus­tri­al re­la­tions prac­tice, such as al­low­ing the em­ploy­ee the op­por­tu­ni­ty to be heard, con­sid­er­ing al­ter­na­tive rea­son­able op­tions, such as re­as­sign­ment and giv­ing ad­e­quate no­tice.

The onus lies on the em­ploy­er to show that in the pre­vail­ing cir­cum­stances the dis­missal was fair and ex­e­cut­ed ac­cord­ing to pro­ce­dur­al jus­tice. Dis­miss­ing an em­ploy­ee based sole­ly on his dis­abil­i­ty is not rea­son­able un­less the work­er is un­fit to per­form the job and rea­son­able ac­com­mo­da­tion is not pos­si­ble. An em­ploy­ee un­fair­ly dis­missed can be re-em­ployed by re­in­state­ment or re-en­gage­ment de­pend­ing on what is just, rea­son­able and prac­ti­cal in the cir­cum­stance.

Re-in­state­ment puts the em­ploy­ee in the po­si­tion he would have been had he not been dis­missed where­as re-en­gage­ment al­lows an em­ploy­ee to be re-em­ployed in a com­pa­ra­ble form to his orig­i­nal job if re­in­state­ment is not pos­si­ble.

n This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er.