7. If a physically disabled person can handle a particular job with some special facilities/aids, is the employer required to make the relevant adjustments/alterations at the workplace, or could the employer just refuse to employ (or dismiss) that person?

7. If a physically disabled person can handle a particular job with some special facilities/aids, is the employer required to make the relevant adjustments/alterations at the workplace, or could the employer just refuse to employ (or dismiss) that person?

With reference to Code of Practice on Employment under the DDO (issued by the Equal Opportunities Commission), if a person with a disability can perform the inherent requirements of the job with some adjustments, including the provision of certain services or facilities, employer is required to consider making such adjustments. Making adjustments that are required to ensure equal opportunities for people with a disability is commonly referred to as providing reasonable accommodation. Reasonable accommodation may be made at any stage of employment, according to the needs of the person with the disability.

If you are a person with a physical disability, you may frankly tell your employer that all people with a physical disability want to work independently and not to depend on the help of other colleagues. Your employer must try to provide reasonable accommodation in the workplace. For example, your employer can check the access to the building, the steps, the office corridors and toilets, to see whether these facilities need any alteration; he/she may install some special facilities for people with a disability; he/she may also provide you with flexi-hours in the office, so that you can perform the inherent requirements of the job.

However, according to clause 11.8 of the Code of Practice and section 12(2) of the DDO, it may be lawful to discriminate against (e.g. refuse to employ or dismiss) a person with a disability if providing reasonable accommodation would impose unjustifiable hardship on the employer. That is to say, the person or organisation that provides the reasonable accommodation to the disabled person would suffer a lot as a result. The most typical examples of unjustifiable hardship are the poor financial circumstances of the employer, and the huge amount of expenditure (including recurrent expenditure) required to be made by the person or company claiming unjustifiable hardship.

It clearly may be difficult for persons/organisations with limited resources to spend a lot of money making adjustments in order to provide reasonable accommodation for an employee with a disability. The DDO allows the financial capacity of an organisation to be taken into account. For more information on this issue, please refer to clause 11.18 of the Code of Practice or section 4 of the DDO.

(Note that the principles of reasonable accommodation and unjustifiable hardship apply to cases relating to physical disability as well as other kinds of disability.)

If a dispute is brought to court and the employer claims unjustifiable hardship in defence of not providing reasonable accommodation, the burden of proving the expense is not justifiable falls on the employer.

In short, an employer must not claim that a disabled person cannot perform the inherent requirements of a job without first considering the provision of reasonable accommodation, or treat that person less favourably than people without a physical disability.