30 October, 2017
The passage of the Rights of Persons with Disabilities Act, 2016 (the Act) and subsequent notification of the Rights of Persons with Disabilities Rules, 2017 (the Rules) is intended to bring Indian legislation in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
The Act and the Rules replace the 1995 legislation and introduce substantial changes to rights and protections of people with disabilities. Employers should take note of the changes in order to avoid falling foul of the provisions, most significantly because private establishments must now observe the requirements in respect of their employees.
Persons with disability
Under the old regime, a “person with disability” was defined by reference to an exhaustive list of seven disabilities. The Act has shifted this definition to a more inclusive one which encompasses any person “with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others”. A “barrier” is any factor (including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors) which hampers the full and effective participation of persons with disabilities in society.
In addition to the broader definition of persons with disability, the Act includes a list of 21 “specified disabilities” and gives the Indian Central Government the power to add further categories of disability. Any person with 40% or more of a specified disability will qualify as a “person with benchmark disability” under the Act. A person with benchmark disability who considers him or herself to be in need of intensive support (physical, psychological and otherwise) to undertake daily activities, to take an independent and informed decision to access facilities, and to participate in all areas of life, may request such support from a relevant authority.
Various rights and protections are afforded under the Act to all persons with disability, including the right not to be discriminated against on the ground of disability or, in other words, the right to equality of treatment. However, this right is subject to an exception where it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.
Obligations of private employers
In a break from the past, obligations under the new disability regime apply not only to government establishments but also to “private establishments”, being companies, firms, cooperatives or other societies, associations, trusts, agencies, institutions, organisations, unions, factories or such other establishments as may be specified. Such private employers are now subject to requirements (i) to promote an equal opportunity policy, and (ii) to comply with the standards of accessibility prescribed by the Indian Central Government.
Equal opportunity policy
Every establishment (both government and private) must publish an equal opportunity policy preferably on their website or, failing which, at conspicuous places in their premises. The equal opportunity policy must contain the following:
- the facilities and amenities to be provided to the persons with disabilities to enable them to effectively discharge their duties;
- a list of posts identified as suitable for persons with disabilities;
- the manner of selection of persons with disabilities for various posts, post recruitment and pre-promotion training, preference in transfer and posting, special leave, preference in allocation of residential accommodation, if any, and other facilities; and
- provisions for assistive devices, barrier-free accessibility and other provisions for persons with disabilities.
Establishments with more than 20 employees must appoint a liaison officer to ensure compliance with the policy and to look after the recruitment of persons with disabilities. All establishments must also maintain hard and soft copy records of the persons with disabilities in relation to the establishment’s compliance with the equal opportunity policy.
Compliance with prescribed standards of accessibility
Under the Rules, establishments must comply with certain standards in respect of physical environment, transport, and information and communication technology. These standards are promulgated by various government departments and include website standards guidelines and model building bi-laws.
Existing establishments must comply with the standards within five years.
Consequences of failure to comply
Failure to comply with the requirements of the Act can result in a fine of up to INR 10,000 for the first offence, or between INR 50,000 and INR 500,000 for subsequent offences. Additionally, any person who fails to provide to the relevant authority any records and information which he is under a duty to produce will be liable to a fine of up to INR 25,000 in respect of each offence, extending by INR 1,000 for each day of continued failure.
Where an offence has been committed by a company, every person who was in charge of and responsible to the company for the conduct of its business at the time of the offence is deemed personally guilty of the offence.
Key takeaways
Although the scope of protection has been widened significantly, the right to equal treatment is qualified where an act or omission is a proportionate means of achieving a legitimate aim. It is currently unclear what amounts to a legitimate aim, so employers wishing to rely on this caveat should take care to consider thoroughly and, where possible, to document the reasons for any decision to act in way which might be said to contravene the rights of persons with disabilities.
It should be noted that while existing establishments must comply with the prescribed standards of accessibility within 5 years to comply with the standards of accessibility, new establishments must comply with them from formation. Employers intending to launch new ventures or engage in restructuring must be mindful of the additional costs which may be incurred by ensuring compliance with the prescribed standards.
For further information, please contact:
Fatim Jumabhoy, Partner, Herbert Smith Freehills LLP
fatim.jumabhoy@hsf.com
