When a disability affects performance
First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider) May 2019
What duties does an employer have when an employee develops a disability which prevents him from performing his employment duties, either completely or partially?
This is effectively a performance issue. However, the employer is under an obligation to consider whether any reasonable adjustments can be made to assist the employee with returning to work. Otherwise, the employer may be in breach of the Human Rights Act 1981 (Human Rights Act).
It is a breach of the Human Rights Act to discriminate against an individual because of a disability. However, the Human Rights Act also provides that nothing in that Act confers upon any person any right of employment or any right to be given, or to be retained in, any employment for which he is not qualified or which he is not able to perform or of which he is unable to fulfil a bona fide occupational requirement, or any right to be trained, promoted, considered or otherwise howsoever treated in or in relation to employment if his qualifications or abilities do not warrant such training, promotion, consideration or treatment.
The obligation to consider reasonable adjustments is set out in section 9C of the Human Rights Act, which provides that a disabled person shall not be considered disqualified for employment by reason of his 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 the employment, without causing unreasonable hardship to the employer or prospective employer.
For the purposes of this section “unreasonable hardship” arises in circumstances where (a) modification of a disabled person’s employment or prospective employment to eliminate or reduce the effects of the disabled person’s disability would be unreasonably costly, disruptive, or extensive; or (b) making such a modification would unreasonably alter the nature or operation of the employer’s business.
The unreasonableness of a modification will be determined on a case-by-case basis taking into account certain statutory factors which in summary include (i) the overall size of the employer’s work place; (ii) financial implications, concerning the employer’s workplace; and (iii) the impact on safety, concerning the employer’s workplace.
It is recommended that in considering any reasonable adjustments that a medical opinion is obtained.
In the event that there are no reasonable adjustments which can be made to assist the employee with returning to work, the employee may be dismissed by reason of their inability to perform their employment duties.
This note is intended as a high level overview of this topic and there may be a number of other issues which will also require consideration. Legal advice should always be sought on a case by case basis.
