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Implementing the EE Act's new Code of Good Practice on Disability: interview with the drafters

New contributor: Implementing the EE Act's new Code of Good Practice on Disability: Equity-Skills interviews the drafters

By Peter Strasheim who can be contacted on  083 - 6023456, or 011 486-0478 3456, and by email at stras@iafrica.com
1. Introduction

The EE Act's new Disability Code is out. Jeff Sacht chatted with Peter Strasheim, labour attorney, HRD and disability law specialist who did the Code's legal drafting. Employers want to know what the Code is about and how to start planning a compliance strategy. Peter agreed to share his recommendations and how they work with employers. A new code of good practice that its drafters say can reduce employment costs for employers while it promotes fair practices for employees gets our attention.

But is that claim realistic: this new Code comes from the Department of Labour, and is about employment equity and disability? Definitely, says Peter Strasheim, legal drafting consultant, who answered my questions about the Code, and cited the positive outcomes major employers he works with have already had.

2. Interview

Q: What is this new Code about?

 Promulgated under the EE Act, it's called the "Code of Good Practice on the Employment of People with Disabilities". It came into operation in August last year. It is intended as a guide for employers for complying with the disability-related requirements of the EE Act - firstly to identify and remove unfair discrimination, and secondly to promote affirmative action.

The Code has been drafted to present employers a business case and a compliance case for promoting equity and implementing change. As a result, employers as well as people with disabilities will both benefit. So Peter emphasises that "it makes clear compliance sense as well as business sense to start developing a strategy for aligning with the Code, and for building the steps into overall EE planning and reporting". More on this later.

Q: Why is the Code important?

The Code introduces new (1) fair labour practices and (2) equal opportunity rights for employees with disabilities into SA employment law. The LRA's "Code of Good Practice: Dismissal" contains ill health and injury termination provisions (more on this below) - but confined to dismissal it only applies at the end of the employment cycle.

The LRA - and the courts - never advanced disabled job applicants and employees' rights over the full employment cycle, or in the workplace itself. Compounding this, the rights and guidelines around the definition, reasonable accommodation, training and retention had also never been addressed.

The new Code was promulgated by the Minister to promote these rights and to address the gaps. It will impact typical disability-related workplace policy and practice, specifically in the areas of recruitment and selection, medical testing, safety, industrial/employee relations and employee benefits. The result is a need to re-align policy in terms of a planned change strategy.

Q: What does the Code actually cover?

The Code gives guidelines for how to start, what to do and who could do it, when promoting (1) fair labour practices and (2) equal opportunity rights for employees with disabilities. It also identifies the important stages in the employment cycle and the key process that practitioners can review for discrimination, and if necessary adjust. So it goes well beyond quantitative affirmative action hiring, reporting and monitoring.

Q: Which employment practices and practitioners are affected?

For years, typical practice in relation to disabled employees was often to terminate via disability benefits, or failing that, to dismiss for ill health or injury under the LRA. For employees falling within the EE Act's definition of disability, this approach is likely to amount to unfair discrimination or an unfair labour practice - the EE Act's right to non-discrimination, "reasonable accommodation", "affirmative action" and "retention" apply.

Against this background, the Disability Code had to introduce good practice guidelines, using comparable international precedents and best practices, to guide practitioners to promote disability equity and fair labour practices. So the Code offers detailed guidelines for practitioners in the following fields: recruitment, selection and placement; medical and psychological testing; safety risk; retirement funds and insurers providing disability benefit schemes.

Q: What case can you make out for employers to comply?

While drafting, the debate on the impact of labour law on productivity, employment levels and costs was on. We sought to produce a Code that would make business sense to implement and would deliver equitable outcomes. At the time ILO published its new "Disability Management" code, which gives guidelines for retention, which in turn results in cost reduction. We were able to incorporate both into the SA Code: the EE Act's "disability equity" requirements and the ILO's "disability management" guidelines. This offers employers a compliance case for change, and a business case for change.

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Gary Watkins

Gary Watkins

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