Making Disability Work

1 November 2006

Employers who can shift their thinking to see disabled people as assets will welcome the standards set out by a new UN Convention on Disability. The Convention is about turning around what’s often seen as a negative and looking for the positive things that the person brings, says Human Rights Commissioner Robyn Hunt.

The Convention encourages a ‘can-do’ approach, Commissioner Hunt says. “Remember disabled people can often manage a world that can be hostile or not particularly inclusive, and if they want to achieve things they have to manage around those barriers. That develops qualities that are definitely not recognised – qualities like change management, being persistent, thinking creatively, and managing difficulties.”

“The development of the Convention promoting and protecting the rights of disabled people does not impose any extra obligations on employers because disabled people already have those rights. But it does clearly articulate the standards around employment for disabled people.”

The Convention (properly known as the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities) establishes disabled people as able to participate in the workforce alongside their non-disabled peers on an equal basis. “That has to be increasingly recognised by employers.”

“It’s a reminder to employers that disabled people have the same rights as other people. Although it’s not law yet, it is a document that does have some standing in that it has been agreed to and developed internationally with an international consensus.”

One of the principles outlined in the Convention is that disabled people should be paid equally for work of equal value. This challenges employers to make sure they’re paying people fairly.

The Convention does encourage signatory states to take steps, including legislative measures, to ensure that reasonable accommodation is provided to persons with disabilities in the workplace. Failure to reasonably accommodate is now described as discrimination, she says.

The Convention seeks to encourage the public sector to employ disabled people. “I think it’s a reminder to the public service that it needs to keep working on EEO issues.”

Hunt remains baffled as to why people are so reluctant to recruit more widely and include disabled people in their thinking, when there is such a skills shortage. “There’s such a waste of talent. Disabled people are working successfully in all kinds of jobs and professions, in New Zealand and worldwide. There’s quite a lot of assistance out there if people choose to use it, in the form of expertise or advice. It’s not that hard. I think sometimes people make it hard.”

Tips for making disability work

Make sure there are policies and processes in place to support employing disabled people. It shouldn’t depend on one “really good person” to support the disabled person. Often a disabled person is taken on because they work really well with particular staff members, but if those staff members leave, their institutional knowledge and expertise about working with disability needs to remain.
Develop an open and inclusive workplace culture that actively encourages diversity. Communication is a “huge” part of that. Whether that means face-to face-conversations, the way information is presented, or inclusion in meetings or social events, good communication can forestall the misunderstandings and difficulties faced by any minority person, disabled or otherwise.
Get outside help if needed, from organisations such as Workbridge, the Foundation of the Blind, the Deaf Association, the Human Rights Commission, or the EEO Trust.
Remember disabled people are their own experts. Work with them and listen to them, because they may have already dealt with and solved what you perceive as barriers.

What does "Reasonable Accommodation" mean?

Robyn Hunt says reasonable accommodation means meeting the needs of a disabled person so they can do their job. "What is “reasonable”? Where do you set the bar? I believe that it’s our job to raise the bar. Often people don’t know what is reasonable because they don’t know enough about disability. They don’t realise that there’s technology out there, that there’s different ways of doing things. I think that EEO is an opportunity for the bar to be raised on what is a reasonable accommodation.

“Reasonable accommodation can include all sorts of things: modifying a building or a workstation, technology, or modifying the way something is done. It’s really all about flexibility and thinking outside the square.”

Employers in Britain have been ruled discriminatory for failing to make "reasonable adjustments". (In the UK the test is "reasonable adjustments", not "reasonable accommodation".) In one case a travelling salesman with rheumatoid arthritis in both wrists was denied use of a van with power-assisted steering, even though his colleague in the same role was provided with one. As a result he had to reduce his hours, since the van he was given caused him pain. He expressed willingness to work fulltime hours if he could use a van with power steering, but his employers chose to further reduce his hours instead. An employment tribunal said the employers failed to make a reasonable adjustment by swapping the vans so he could drive the one with power steering. "He suffered a detriment...in continuing to work only three days a week, when he would have been able to work five days a week if a reasonable adjustment had been made," the tribunal said.

In another case, an adminstrative assistant at a job centre, was placed in a frontline role where she had to deal with the public, despite a depressive illness that had caused her to take sick leave. The centre's clients could be difficult, and she made it clear that she felt unable to deal directly with the public. An employment tribunal found that her employers had made no effort to discover her needs and aspirations, or determine where she felt she could work. As a result, alternative employment was not offered to her although there were some vacancies in the area.

The tribunal concluded that she was placed at a substantial disadvantage compared to people without her disability by being required to continue working with the public when her illness made it difficult to do so. There was a duty to make reasonable adjustments, the tribunal said. "Given that there were suitable vacancies, it was reasonable to redeploy her." The tribunal ruled that she was discriminated against.

What happens next
The draft Convention was adopted at the UN Ad Hoc Committee’s August 25 meeting. The text is currently in the hands of a drafting committee, which plans to present it to the UN General Assembly for voting on December 3, the International Day of Disabled Persons. It will need to be ratified by 20 countries. Some countries, notably the United States, do not plan to ratify the Convention as they believe their existing disability legislation performs the same functions.

New Zealand’s involvement in the Draft Convention
New Zealand has been strongly associated with the Draft Convention. The United Nation’s General Assembly decided to form an Ad Hoc Committee to draft a Convention on the rights of disabled people in 2001, and in 2003 New Zealand sent a delegation to the Committee’s second meeting. The delegation was made up of representatives from the Office for Disability Issues, the Ministry of Foreign Affairs and Trade, a Human Rights Commissioner and two disabled civil society representatives. Two New Zealanders from the NGO Inclusion International also attended.

The delegation drew on its experience of New Zealand’s Disability Strategy to present six statements to the Committee, outlining ideas for the Convention.

In 2003 New Zealand was granted a place on the Committee’s working group made up of members from States, non-government organisations and human rights institutions. New Zealand’s Permanent Representative to the United Nations, Don MacKay, chaired the group. MacKay later went on to chair the Ad Hoc committee itself, and was in charge of often strenuous and delicate negotiations.

The world-wide disabled community, represented by delegates from NGOs and disabled rights organisations, had an unprecedented level of involvement in the development of the Convention. Unlike previous UN processes, NGOs had the right to intervene and contribute to the document.

Read Article 27, Work and Employment, of the Draft International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities