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Technical Assistance Guidelines on the Employment of Persons with Disabilities - A call to action goes unanswered

Technical Assistance Guidelines on the Employment of Persons with Disabilities
Issued June 2017

During June 2017 the Department of Labour quietly published the revised Technical Assistance Guidelines on the Employment of Persons with Disabilities (TAG).
 
The TAG guidelines build on the  Code of Good Practice on the Employment of Persons with Disabilities to set out practical guidelines and examples for employers, employees and trade unions on how to promote equality, diversity and fair treatment in employment through the elimination of unfair discrimination.
 
The TAG guidelines and the associated Code represent guidelines only and are intentionally general. Even so, these documents are used by the Courts to assist in resolving disability disputes referred to it.
 
A call to action goes unanswered 

Chapter 3 of the TAG guidelines presents a call to action to employers, employees, trade unions and organisations representing the interests of disabled persons to develop, implement and refine disability equity policies and programmes to suit the needs of the workplaces. 
 
Sadly this call has largely gone unanswered. Unlike other special interest lobby groups, such as for example the LGBT(QI) community, organisations within the disability community have been unable to combine their efforts and actively pursue the interests of persons with disabilities. The LGBT community has successfully managed to significantly extend key human rights, and not necessarily only for same sex couples.
 
A simple illustration of power of collective action can be seen in the following series of court cases:-
 
  • Extension of the definition of marriage
  • Extension of rights to maternity leave
  • Extension of the rights to adoption
  • Extension of the rights to employment benefits
  • Protection of persons with HIV/AIDS
 
While these court cases ostensibily represent the interests of a "minority interest group", the extension of these rights also benefit wider civil society. Single persons or male spouses may now be eligible for adoption of children or in the latter instance, maternity leave if they are or become the primary care giver (for example on the death of a spouse in childbirth). 
 
Other interest groups such as the Doctors for Life have successfully challenged the arena of the "right to life" and the role of public participation in law making. In Doctors for Life International v The Speaker of the National Assembly and Others CCT 12/05, the Court held that the failure by the NCOP to hold public hearings in relation to the Traditional Health Practitioners Act and the Choice on Termination of Pregnancy Amendment Act was unreasonable. 
 
Doctors for Life is currently fighting the constitutional legality of South Africa's dagga legislation, noting that scientists have long since proven that the dagga plant is highly complex and dangerous and must be prohibited. This is particularly the case in various refinements and hybrids of the dagga plant. The importance of this case for not only the modern workplace but for broader civil society cannot be underestimated.
 
Of course, there are a few Labour Court decisions on the rights of persons with disabilities, not all of them noteworthy for either their interpretation or application of "reasonable accommodation measures".
 
In Johannes Diedrick Smith v The Kit Kat Group (JS 787/14) the Labour Court found in favour of the Applicant who had been discriminated against on grounds of disability. The Applicant had attempted to commit suicide, disfiguring his face. The Respondent company, whilst initially assisting the employee, refused to reinstate the employee once he was able to return to work. The Applicant received substantial compensation.
 
In IMATU v City Of Cape Town (LC) 18 July 2005 firefighters who were diagnosed as insulin dependent diabetics were successful in overturning a blanket ban on their employment.

In other civil courts, we have seen some progress:
 
Western Cape Forum for intellectual Disability v Government of the Republic of South Africa and Another (2011 (5) SA 87 (WCC)) [2010] ZAWCHC 544; 18678/2007 (11 November 2010) where the Court held that "It is declared that the respondents have failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children"

What is absent from jurisprudence around the rights of persons with disabilities are not only key Constitutional Court cases on the duty of employers to provide reasonable accommodation (including limitations on such a duty), but specific guidelines on accommodating persons with particular disabilities.
 
The Equal Employment Opportunities Commission (EEOC) in the USA has published Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities as well as other guidance notes on bi-polar disorders, accommodating persons with hearing and vision impairments, diabetes, epilepsy, intellectual disabilities, cancer etc.
 
In the UK, ACAS has also produced some guidance on accommodating persons with disabilities, including the question of obesity.
 
Our own Department of Labour has published not only the Code in terms of the Employment Equity Act but also the excellent TAG guidelines, both of which have gone relatively unnoticed and unread in the workplace. The Department has done what it can. It now remains the responsibility of employers, employees, the noticeably absent trade unions, and disability interest groups to bring meaning and clarity to the duty to provide reasonable accommodation.

Litigation as a strategy for social change ... must be accompanied by "a clearly articulated vision, political lobbying and advocacy at the personal and community levels. Persons with disabilities must work in many ways to dismantle the barriers that prevent their full participation in society". [1]
 
Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 82 416 7712

T: +27 11 462 0982

F: +27 86 689 7862

Website: www.workinfo.com
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