Employer’s Duty under Rights of Persons with Disabilities Act, 2016
(Volume – 45 of Coffee Break Compliance Guide from Anandan Subramaniam)
The Act and its Objective: The Rights of Persons with Disabilities Act, 2016 is the disability legislation passed by the Indian Parliament in repealing the previous legislation in this regard i.e. The Persons with Disability (Equal Opportunity, Protection of Rights and Full Participation) Act of 1995. The main objective of the Act is to uphold the dignity of any person in the society and prevent any discrimination against any individual in the name of disability. It just speaks of “inclusive society”, accepting every person, irrespective of disability, if any.
The main objective includes –
- respect for inherent dignity
- inclusion in society
- respect for difference and acceptance of persons with disabilities
- equality of opportunity
- equality between men and women
- respect for the rights of the children with disabilities.
As per the definition of the Act, all Government and Private Establishments are covered under the Act. Where private establishment includes a company, firm, cooperative or other society, associations, trust, agency, institution organization, union, factory or such other establishment as the appropriate Government may specify by notification.
Three different disability types are defined under the Act:
- “person with benchmark disability” means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;
- “person with disability” means a 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;
- “person with disability having high support needs” means a person with benchmark disability, who needs high support;
Duties of employer:
- Section 8 ensures the protection and safety of persons with disability in cases of any risk, armed conflict, humanitarian emergencies or natural disasters.
- Sec 20 states that no discrimination shall be made against persons with disability in matters relating to employment and also ensure reasonable accommodation and a barrier free conducive working environment to them.
No promotion shall be denied to a person merely on the ground of disability.
If the profile of the job is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
- As per section 21 of the Act, “Every establishment shall notify equal opportunity policy detailing measures proposed to be taken by it. Every establishment shall register a copy of the said policy with the Chief Commissioner or the State Commissioner, as the case may be.
- As per section 22 of the Act, “Every establishment shall maintain records of the persons with disabilities in relation to the matter of employment, facilities provided and other necessary information in compliance with the provisions of Chapter IV, in such form and manner as may be prescribed by the Central Government.
Further such records maintained shall be open to inspection at all reasonable hours by such persons as may be authorized in their behalf by the appropriate Government.
- Sec 35 speaks of the appropriate Government providing incentives to private employers who ensure 5% of their workforce is comprised of people with benchmark disability.
- Sec 36 speaks about the establishment of special employment exchanges that keep a track of post and vacancies for persons with disability – which makes the establishments to easily identify
Offences and Penalties
Where the provisions of the Act are not followed by an Employer or any contravention of the provisions, as per Chapter XVI, for first contravention employer shall be punishable with fine that extends to ten thousand rupees and subsequent contravention shall be punished with fine not less than fifty thousand and up to five lakhs.
For any offence committed by a company, the person in charge, responsible for the conduct of the business of the company, shall be punishable according to the provisions of the Act.
Acts whereby any person:-
- Intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view;
- Assaults or uses force to any person with disability with the intent to dishonor him or outrage the modesty of any woman;
- Having actual charge or control over a person with disability, voluntarily or knowingly denies food or fluids to him;
- Being in a position to dominate the will of a child or a woman with disability and uses that position to exploit her sexually;
- Voluntarily injures, damages or interferes with the use of any limb or sense or any supporting device of a person with disability;
is punishable with imprisonment not less than six months which may extend up to five years and fine.
The above regulation is to give effect to the United Nations Convention on the Rights of Persons with Disabilities and matters connected with it. Let us respect the inherent dignity of the person with disability.