DISCRIMINATION AGAINST PERSONS WITH DISABILITIES (PROHIBITION) ACT, 2018: THE IMPLICATIONS FOR BUSINESSES AND HR PRACTICES IN NIGERIAKayode Ibukunoluwa-Micah /
It is no longer news that President Muhammad Buhari signed into law on January 23, 2019 the “Discrimination Against Persons with Disabilities (Prohibition) Act 2018” which forbids all forms of discrimination (Access to company’s facilities, transportation and employment etc) against persons living with disabilities and imposes a fine of N 100,000 or a term of six months imprisonment on individuals and a whopping sum of N 1,000,000 on corporate bodies that violates any section of the new law.
The key objective of the Act is to ensure the full integration of persons with disabilities into society and guarantees their education, healthcare, economic wellbeing, and civic right and social inclusiveness. This follows on the heels of the International Labour Organization (ILO) Convention on the Vocational Rehabilitation and Employment of (Disabled) No.159 of 1983 signed by Nigeria on July 14, 2010 and the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol on May 28, 2007 and October 27, 2008 respectively.
WHO IS A PERSON WITH DISABILITIES?
The Act defines a person with disabilities to means
- A person who has received preliminary certificate of disability to have condition which is expected to continue permanently or for a considerable length of time which can reasonably be expected to limit the person’s hearing, thinking, ambulating, descending, lifting, grasping, rising, and includes any related functions or any limitation due to weakness or significantly decreased endurance so that he cannot perform his everyday routine, living and working without significantly increased hardship and vulnerability to everyday obstacles and hazards.
- A person with long term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
KEY PROVISIONS OF THE DISCRIMINATION AGAINST PERSONS WITH DISABILITIES (PROHIBITION) ACT, 2018
Part 1 (1), (2) and (3) Prohibits discriminatory or differential treatments against persons with disabilities by any “person or institution in any manner or circumstances whatsoever.” It further provides for penalty for violation and grants the right to any disabled person whose right had been violated to institute a civil action against any “such person committing the offence or causing the injury, without prejudice to any conviction or acquittal.”
Part 111. This section of the Act states that a person with disabilities shall have the right to access the physical environment and buildings on an equal basis with others. It provides that a public building shall be constructed with all necessary accessibility aids and all necessary facilities that shall make it accessible for persons with disabilities.
Instructive to note here is the definition of a public building which the law sees as “a building owned or used by government or government agency or a building available for the use of members of the public.” By implication, this will include private business buildings that serve members of the public including private residential buildings made available for residential purposes. The Act expatiates further when it sees accommodation in the context of housing to mean “residential or business accommodation.”
TRANSITIONAL PERIOD FOR COMPLIANCE
The Act provides for public buildings and structures to be modified within a five year period to accommodate the requirements that meet the demand for accessibility to persons with a disability without a penalty. It also provides that public building should henceforth get an approval such as building plan that satisfies the building code and accessibility to persons with disabilities condition.
BARRIER TO ACCESSIBILITY AND PENALTY FOR DEFAULT
Section 8 subsection 1 of the Act states as follows “ Subject to section 7, in the event of evidence of state of inaccessibility or barrier to access of a person with disability to the environment that he or she has a right or duty to access, he may, without prejudice to his or her right to seek redress in court, notify the relevant authority in charge of the environment of the existence of the state of inaccessibility or barrier to accessibility of the environment, and it shall be the duty of the relevant authority in charge to take immediate and necessary steps to remove the barrier and make the environment accessible to the person with disability.”
Note that Section 8, subsection 2 (a) and (b) imposes damages of N 10,000 on corporate bodies and N 5,000 on individuals for failure to comply once such notice of barrier existence is brought to the relevant authority notice for each day that such barrier exists.
Part IV – Road Transportation (Goods, services and Facilities). This section makes it an unlawful act for a provider of goods and services or related services to discriminate against persons with disabilities. Subsection 10 (2) (4) made it clearer with reference to such services as staff bus, designated parking lots for PLWD and safety measures when it states inter alia that “ Every public vehicle should have a functional audible and visual display of their destination within 5 years from the commencement of this Act.”
Part vii – This section provides for the right to first consideration in Queues and during emergencies for person with disabilities.
EMPLOYMENT: EQUAL RIGHT TO WORK FOR PERSONS WITH DISABILITIES
Section 27 (1) Provides for the right to equal opportunity in employment related matters and made it unlawful to discriminate against with living with disabilities. Subsection 2, of Section 27 imposes minimum nominal damages of N 250,000 on any person upon conviction that discriminate against PLWD in employment based on their disability payable to the affected person with disability. And, where the violator is a company, the Act states thus “ the company shall be liable to nominal damages of a minimum of N 500,000 payable to the affected person with disability; and
- Any principal officer of the company involved in the violation shall be liable to N 50,000 damages payable to the affected person with disability.
It should be noted also, that section 28, states that “All employers of labour in public organization shall as much as possible have person with disabilities constituting at least 5 % of their employment.”
ACCOMMODATION. This can be extended to staff accommodation, here it is expected that when such facility is provided for by organization to their employees, the Act states that persons with disabilities “shall be given first consideration.”
It is instructive to note that individuals and corporate organizations especially HR professionals should pay due diligence to the requirements of the Discrimination Against Persons with Disabilities (Prohibition) Act 2018 so as to avoid the pitfalls that could plunge their organizations into litigations and attendance losses thereof. With over 19 million people living with disabilities in Nigeria the need for such legislation is of paramount importance, therefore, its implementation must be supported by all.
With the window of 5 years provided by the Act for organizations and individuals to put in place required facilities that are needed for implementation, we advise therefore that issues such as accessibility facilities, accommodation, public transportation where it is provided by individual or organizations, recruitment and employment documentation should be addressed and designed to meet with these requirements of the Act.
Though it appears that the Act gives wide latitude and advantage to people with disabilities when it provides in Part XIV under Miscellaneous Provisions in Section 56 (1) that “To be entitled to the damages especially provided in this Act, It shall be sufficient for a plaintiff claimant as the case may be, in a court proceeding to prove the violation of the relevant section of this Act without specific proof of damages”
It went further to states in subsection 2 that “Nothing in this Act shall prevent a court from accessing and awarding general and specific damages in addition to the normal damages provided for in this Act.”
To ensure compliance, it becomes necessary that individuals and corporate organization should, therefore, reappraise their internal processes, facilities, and procedure to ensure total compliance with the Act. It’s sufficed to say that full compliance requires a joint action which will take into account structural design (building and facilities), transportation management and Human resources management processes, documentation and procedures.
This writer (firstname.lastname@example.org) will be willing to render consultative service to any organization that requires such services to achieve full implementation and meet the requirements of the new law. We also prove training for the company’s personnel and individuals.