Updates to Human Rights
What constitutes unreasonable hardship? Recent updates to the Human Rights Act by Allan Doughty
See the full article in the Royal Gazette here.
When does a duty to accommodate a disabled employee amount to unreasonable hardship?
In May 2008, Michael Roberts and Stephen Hayward won the first disability discrimination case in Bermuda’s history. During the course of that action they argued that their dismissal from the Bermuda Fire and Rescue Service, due to the onset of heart conditions, violated the Human Rights Act. The Fire Service countered by stating that it required all of its members to be physically fit. In ruling in Mr. Roberts’ and Mr. Hayward’s favour, Chief Justice Richard Ground said that even though physical fitness may have been a legitimate requirement of the Fire Service, employers also have a duty to accommodate employees that are physically disabled so long as the employer does not experience “unreasonable hardship” as a result. In the case of Mr. Roberts and Mr. Hayward, that meant that their considerable experience could have been put to great use in non operational roles within the Fire Service and that they should not have dismissed from their employment despite their respective disabilities. It was for that reason that Mr. Roberts and Mr. Hayward succeeded in establishing their complaint before the Supreme Court of Bermuda.
On the 3rd of December 2011, the terms of the Human Rights (Unreasonable Hardship) Amendment Act, 2011 was brought into force. The purpose of that legislation is to provide guidance to the Courts and Board of Inquiry hearing Human Rights complaints in determining what would amount to “unreasonable hardship” on the part of an employer when dealing with an employee who is physically disabled. The new legislation codifies the decision concerning Mr. Roberts and Mr. Hayward by requiring employers to “modify” the conditions of employment of a disabled employee so as to “eliminate” the effects of the disability in relation to that person’s employment. The Amendment Act also holds that where such modification results in “unreasonable” hardship to an employer, the employer may be excused from having to undertake the necessary changes to accommodate that employee. The Amendment Act then goes on to state that factors such as cost, disruption, effect on overall output, the safety of the employee and the general public will all be considered by a reviewing Court or Board of Inquiry in determining whether the employer would suffer unreasonable hardship.
As the Human Rights Act applies to all employment relationships it is recommended that any business that employs or that may have an applicant for employment who is physically disabled should seek legal advice to determine whether it is compliant with the Human Rights Act and the extent of the obligations that it would owe its disabled employee. Alternatively if an individual has a physical disability and is having difficulty in performing his or her job on account of that disability, that individual should speak to his or her employer to try and find a way to reasonably accommodate the needs of that employee.
It must be emphasized that the Human Rights Act guarantees the fundamental rights of all individuals in the workplace. If you are uncertain as to the rights that you have or how they are protected in law, it is recommended that you contact the Human Rights Commission or legal counsel for further guidance.
