Literature Review: INTERNATIONAL AND REGIONAL LEGAL FRAMEWORK on Accomodation
2.1 Introduction
In South Africa, the legal framework controlling reasonable accommodation for persons with disabilities is a complicated interaction of national legislation, international responsibilities, and court interpretation. Domestic laws including the Constitution, the Employment Equity Act (EEA), and the Labour Relations Act (LRA) owe their foundation to South Africa’s obligations under the ILO conventions and the UNCRPD. These laws guarantee that persons with disabilities may fully engage in the workforce free from discrimination by means of reasonable accommodations, so establishing a legal obligation for employers (Addae, 2024; Bam & Ronnie, 2020).
The national and international legal systems controlling reasonable accommodation in South Africa are under review in this chapter. It also goes over pertinent case law and addresses the degree of actual application of these legal tools.
2.2 International Instruments
National laws and policies pertaining to disability rights are shaped in great part by international frameworks; thus, South Africa’s legal system is much influenced by these worldwide standards. The International Labour Organization’s (ILO) Discrimination (Employment and Occupation) Convention (1958), which lays out member states’ obligation to eradicate any type of discrimination in employment, including disability-based discrimination, is among the most powerful frameworks. The ILO stresses the need of encouraging equal possibilities in the workplace and assigns reasonable accommodations as a vital instrument to reach this goal (ILO, 1958). In this sense, reasonable accommodation is the required changes and adjustments that let people with disabilities operate their jobs on par with others. Ensuring that disabled workers are not excluded from meaningful employment or marginalised depends on this emphasis on inclusiveness.
Further bolstering this international legal basis is the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which South Africa signed in 2007. Article 27 of the UNCRPD expressly asks for the avoidance of discrimination in all spheres connected to employment. It requires member states to make reasonable concessions that let people with disabilities have equal access to job possibilities and engage completely in the workforce (UN, 2008). Apart from providing employment rights, the UNCRPD emphasises the need of inclusive policies supporting the dignity and autonomy of people with disabilities. The Convention underlines that rather than making people fit into inflexible, one-size-fits-all rules, businesses should change to meet workers’ needs.
These international tools show a basic change in the way disability is seen on a worldwide scene. Disability was historically seen through a medical model, in which the individual’s disabilities and what they could not do dominated the perspective. Nonetheless, the ILO and UNCRPD show a larger worldwide movement towards the human rights model of disability, which underlines that society and its institutions rather than individuals really create the real obstacles to inclusion. This model demands changes in policies, attitudes, and surroundings to eliminate social and environmental obstacles allowing people with disabilities less participation in the workforce (Sharma, 2022). Consequently, rather than on the people themselves, governments, companies, and society at large bear whole responsibility for guaranteeing the inclusion of people with disabilities.
Furthermore emphasised by another important international treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR), is that work is a human right and that discrimination against persons with disabilities in employment violates that right. The ICESCR asks states to establish conditions that guarantee good work for all, including the need to guarantee accessibility and the supply of reasonable adjustments. These international frameworks taken together highlight how urgently nations like South Africa should implement inclusive laws and policies compliant with world standards of equality and non-discrimination.
2.3 National Legal Framework
2.3.1 The Constitution of South Africa
Especially Section 9 of the South African Constitution offers the fundamental legal foundation for non-discrimination and equality. It guarantees that, before the law, all people are equal and have the right to equal protection and benefit of the law including persons with disabilities. Direct and indirect discrimination is forbidden by the Constitution, so guaranteeing fair treatment and equal opportunities for persons with disabilities ( Republic of South Africa, 1996). Significantly, the Constitution also presents the idea of substantive equality—which transcends simple formal equality to acknowledge that treating everyone the same does not always produce fair results. Differential treatment is what substantive equality demands when needed to guarantee that every person may enjoy equal chances and rights. This idea is especially pertinent in the framework of reasonable accommodation since it requires that companies actively seek to meet the needs of workers with disabilities instead of using a one-size-fits-all approach (Bam & Ronnie, 2020).
Substantive equality is, the Constitutional Court has repeatedly confirmed, the pillar of South African equality jurisprudence. It ensures that equality is attained not only in theory but also in practice by requiring companies to solve structural and historical obstacles experienced by people with disabilities so guaranteeing their attainment. Particularly in the workplace, the Constitution recognises that people with disabilities may need particular adjustments to fully access their rights by requiring reasonable accommodations (Van Niekerk et al., 2020). Therefore, the Constitution offers a strong legal basis for the rights of people with disabilities, so emphasising the need of equality to be substantive, inclusive, and participatory.
2.3.2 The Employment Equity Act (EEA)
One of the most important laws controlling occupational equality in South Africa was passed in 1998 and is the Employment Equity Act (EEA). With an eye towards especially targeted groups, including those with disabilities, the EEA’s main goal is to advance fair treatment and eradicate unfair discrimination in the workplace. Section 6 of the EEA forbids any kind of unfair discrimination depending on a broad spectrum of criteria, including disability. It requires that companies make reasonable adjustments to let workers with disabilities carry out their jobs successfully (Bam & Ronnie, 2020). The Act clarifies the idea of reasonable accommodation as any required and appropriate modification or adjustment to a job or workplace that lets a person with a disability access or engage in employment on equal terms with others (Geldenhuys, 2020).
Particularly by removing obstacles allowing people with disabilities to access or remain in employment, the EEA forces companies to act pro-actively in building an inclusive working environment. This could be physical changes to the workplace, assistive tools, or reorganising of tasks to fit the capacity of disabled workers (Charles, 2022). Lack of reasonable accommodation can be considered a type of indirect discrimination, in which case workplace policies or practices disproportionately disadvantage people with disabilities even if their surface appearance is neutral. The EEA’s focus on reasonable accommodation guarantees that companies acknowledge the particular requirements of workers with disabilities and modify their workplace settings to produce equal opportunities for all (Bam & Ronnie, 2020).
Furthermore, the EEA lays out unambiguous enforcement rules that let workers who feel they have been unfairly discriminated against seek redress either through the Labour Court or the Commission for Conciliation, Mediation, and Arbitration (CCMA). These clauses guarantee that the legal safeguards given to people with disabilities are not only hypothetical but also actively enforceable.
2.3.3 The Labour Relations Act (LRA)
Working with the EEA, the Labour Relations Act (LRA) safeguards workers with disabilities—especially in relation to dismissals. The LRA’s Section 187 specifically forbids dismissals motivated by discriminating grounds, including disability. Strong protection against unfair dismissals and guarantees that workers with disabilities are not let off just because of their disability (Ngoma, 2023).
Apart from forbiddance of discriminatory dismissals, the LRA includes the idea of reasonable accommodation in its clauses concerning incapacity. Before considering dismissal, for example, the employer must investigate all reasonable accommodations—such as changing job duties, modifying work conditions, or assigning alternative positions—should an employee become disabled from illness or injury. An employer legally may terminate the employment contract on grounds of incapacity only when all reasonable accommodations have been used (Addae, 2024). This clause conforms with the larger legal framework meant to safeguard the rights of persons with disabilities by making sure they are not unfairly deprived from the workplace because of events beyond their control.
2.3.4 Codes of Good Practice
Employers have useful instructions for applying EEA and LRA criteria thanks to the Code of Good Practice on Employment of People with Disabilities. It underlines that when deciding what reasonable accommodation is, companies have to consider the particular requirements of every employee (Bam & Ronnie, 2020). The Code describes several kinds of lodging, including physical changes to the workplace—such as ramps or accessible restrooms—as well as modifications to job responsibilities or schedules to fit medical appointments or treatment needs (Addae, 2024).
The Code also emphasises the need of employers and employees working together to decide suitable adjustments. This cooperative approach guarantees that the given lodging is not only reasonable but also customised to the particular requirements of the guest. Ignoring this process could be considered unfair discrimination under the EEA. The Code underlines even more that employers have legal obligations regarding reasonable accommodation; it is not a choice. Ignoring this responsibility might have major legal repercussions including fines or legal action from staff members who believe their rights have been violated (Ngoma, 2023).
Finally, the Codes of Good Practice are a necessary instrument for guaranteeing that the ideas of reasonable accommodation are carried out in the workplace with efficiency. They provide direction on how to create an inclusive environment for people with disabilities and clarity on the legal responsibilities of companies. < Following these rules will help companies guarantee EEA and LRA compliance as well as promote a more inclusive and fair workplace for every staff member.
2.4 Relevant Case Law
Jansen v Legal Aid South Africa
This case is a key legal precedent in the interpretation of reasonable accommodation under the EEA. The court ruled that employers are obligated to make accommodations that are reasonable and do not impose undue hardship on the organization. The case also clarified that employers must consult with employees to understand their specific needs and ensure that the accommodations provided are appropriate (Gresse & Mbao, 2020).
Standard Bank v CCMA
In this case, the court reaffirmed the importance of reasonable accommodation in ensuring that employees with disabilities are not unfairly dismissed. The court held that employers must exhaust all possible accommodations before considering dismissal, particularly in cases of incapacity due to illness or injury (Addae, 2024).
2.5 Conclusion
Supported by international instruments including the ILO and UNCRPD, the South African legal system offers a strong legal basis for the inclusion and protection of people with disabilities in the workplace. Legal obligations for companies to make reasonable concessions, so guaranteeing non-discrimination, are created by the Constitution, Employment Equity Act (EEA), and Labour Relations Act (LRA). Still, the useful implementation of these rules is difficult. Different interpretations of what reasonable accommodation is mean results in different approaches of application. Engaging meaningful consultations between companies and employees is becoming more and more important for courts to guarantee that accommodations are reasonable and fit for the particular needs of every person (Ngoma, 2023; Addae, 2024).
Case law emphasises the increasing judicial focus on the obligation of companies to balance their legal obligations to offer reasonable concessions with their operational needs. Although the structure is in place, employers’ readiness to change their workplaces and apply inclusive policies will determine how well it is used. Dealing with these issues calls for constant legal clarification and more aggressive enforcement to guarantee complete workplace inclusion for people with disabilities. Therefore, even if the basis is solid, practical implementation of reasonable accommodation still needs development to match legal requirements and society expectations.
References
Addae, C.K., 2024. Reasonable Accommodation for Persons with Disabilities at the Workplace. LLM Thesis, Nelson Mandela University.
Bam, A. and Ronnie, L., 2020. Inclusion at the workplace: An exploratory study of people with disabilities in South Africa. International Journal of Disability Management, 15, p.e6.
Charles, W.P., 2022. The integration of people with disabilities into mainstream employment: A model for provincial government departments. Doctoral dissertation, Cape Peninsula University of Technology.
Ebuenyi, I.D., Regeer, B.J., Nthenge, M., Nardodkar, R., Waltz, M. and Bunders-Aelen, J.F., 2019. Legal and policy provisions for reasonable accommodation in employment of persons with mental disability in East Africa: a review. International Journal of Law and psychiatry, 64, pp.99-105.
Geldenhuys, J., 2020. Employment equity in tertiary education: the pitfalls of fast-tracking academics. South African Journal of Higher Education, 34(3), pp.65-88.
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