Employees with disabilities and their right to ‘reasonable accommodation’

The employment of persons with disability is regulated by the Persons with Disability (Employment) Act (Chapter 210 of the Laws of Malta) and the Equal Opportunities (Persons with Disability) Act (Chapter 413 of the Laws of Malta), which among others, prevent employers from discriminating against employees with disabilities. On 1st May 2019, the European Commission launched the #EUvsDiscrimination campaign with the aim to inform EU jobseekers about their right to fair treatment and equal opportunities in all areas of employment and raise awareness of employers’ duties under EU law to provide reasonable accommodation for persons with disability.

The Equal Opportunities (Persons with Disability) Act defines ‘disability’ as a long-term physical, mental, intellectual or sensory impairment which may hinder one’s full and effective participation in society on equal basis with others.

Reasonable accommodation is an obligation on  employersimposed under EU law, the United Nations convention on the Rights of Persons with Disabilities and Maltese law. Maltese law defines ‘reasonable accommodation’ as the necessary alterations made where needed, without imposing a disproportionate or unjustifiable burden,to ensure that persons with disability may enjoy or exercise all human rights and fundamental freedoms, on an equal basis with others. Council Directive 2000/78/EC goes a step further by stating that this burden shall not be disproportionate when it is sufficiently remedied by measures existing with the framework of the disability policy of the Member State concerned.

Employers must therefore take all appropriate measures to enable a person with disability to apply, perform and advance in employment while being trained on an equal basis with others, while ensuring that this is provided from job application to termination of employment.

Part of the #EUvsDiscrimination campaign focuses also on the right to reasonable accommodation for persons with disability. A publication in this regard has recently been published providing various examples of reasonable accommodation, stating that the main types of reasonable accommodation include technical solutions, working arrangements, training measures and awareness raising measures. Technical solutions may include:

  • Installing ramps and elevators,
  • Ensuring that office furniture is put at an appropriate height,
  • Providing Braille terminals,
  • Installing computer software to assist employees,
  • Installing real time interpretation via telecommunications.

The publication further suggests that other cases of reasonable accommodation might relate to:

  • Working arrangements, such as providing flexible working hours and teleworking,
  • Awareness raising measures to ensure that persons with disabilities can perform their duties in a supportive working environment,
  • Modifying procedures and policies,
  • Training to support employees to use assertive technology and mentoring to enable employees to overcome any barriers.

Furthermore, the Equal Opportunities (Persons with Disability) Act states that  an employer shall be considered to discriminate on the grounds of disability if such employer fails to make reasonable accommodation for the disability of an employee, unless the employer can prove that the required alterations would unduly prejudice the operation of his trade or business.  In fact, the Maltese Industrial Tribunal has previously awarded compensation to employees who had been unfairly dismissed and discriminated against by an employer who had failed to offer reasonable accommodation.