The Tripartite Committee on Workplace Fairness has recommended that Singapore’s upcoming Workplace Fairness Legislation (WFL) limit its definition to direct discrimination, which they recommend defining as “making an adverse employment decision because of any protected characteristic”.
The Tripartite Committee further recommends that the WFL cover the following five protected characteristics:
- Nationality
- Age
- Sex, Marital Status, Pregnancy Status, Caregiving Responsibilities
- Race, Religion, Language
- Disability and Mental Health Conditions
To illustrate how discrimination on the basis of disability and mental health conditions will be covered under the WFL, the Tripartite Committee put forth the following scenario:
“Illustration: A new hire’s colleagues observe episodes where his mood seems particularly down, although his work performance is unaffected. During a routine check-in, the new hire’s manager asks if he has any mental health conditions. The new hire replies that he has depression, but the condition is being managed with psychiatric help. The new hire is dismissed with notice a week after that conversation. This dismissal could amount to discrimination.”
The Tripartite Committee further recommends that such discrimination be covered in all stages of employment – “the preemployment (e.g. recruitment), in-employment (e.g. promotion, performance appraisal, training) and end-employment (e.g. dismissal) stages”.
Additionally, the Tripartite Committee recommends defining disability and mental health conditions as follows:
- Disability: (to be aligned to that of the Enabling Masterplan) which defines disability as autism or any intellectual, physical, or sensory disability or any combination of any such disabilities with substantial impact on an individual’s ability to carry out day to day activities.
- Mental Health Conditions: to cover more serious forms of diagnosed mental disorders usually associated with distress or impairment in important areas of functioning. The coverage should be discussed with relevant experts, and details made available when the legislation is introduced.
DPA’s Response:
It is a positive that the illustration provided by the Tripartite Committee attempts to address disclosure of disability. A similar illustration (though not disability-based) is found in the Tripartite Guidelines on Wrongful Dismissals, and it is thus a positive step that the law has the potential to give further teeth to the Tripartite Guidelines on Wrongful Dismissals. Furthermore, it is a positive that this will apply not only to wrongful dismissals but to other aspects of employment such as recruitment or advancing in employment.
Having noted this, we at DPA have several concerns about the above recommended definitions of disability-based discrimination:
Definitions of Disability and Mental Health Conditions
While we at DPA believe it is better to incorporate mental health conditions within disability, we at DPA are heartened that the Tripartite Committee recommends that mental health conditions be included as a protected characteristic alongside disability. However, we have potential concerns about both definitions of disability and mental health conditions proposed by the Tripartite Committee as stated above. As DPA has commented in previous publications, in addition to the absence of psychosocial disabilities, the definition of disability used by the Enabling Masterplan lacks mention of social and environmental factors that interact with such impairments to produce the “substantial impact on an individual’s ability to carry out day to day activities”.
As we have noted in previous publications, the mention of interaction with social and environmental factors is important to include in a definition of disability as it is a more accurate and inclusive depiction of the realities many disabled people face. For example, it is not the fact that a wheelchair user is in a wheelchair that prevents them from entering a building but more so that the building was designed without consideration of ramps. It is not only the medical diagnosis of someone with non-apparent/invisible disabilities (i.e. people living with various chronic conditions or particular psychosocial disabilities) that prevents them from performing the tasks of a given job but often rather because that the workplace does not have flexible work arrangements, etc.
Additionally, including interactions with social and environmental factors in a definition of disability will be more aligned with the social model of disability and hence putting Singapore closer to its obligations to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which Singapore has ratified.
Pertaining to the definition of mental health conditions, it is a positive that the definition will cover “more serious forms” of mental health conditions. However, the wording of the current proposed definition is vague and leaves many unanswered questions that raises potential concerns.
For example, when covering “more serious forms” of mental health conditions, we recommend that the definition refrains from attempting to provide an exhaustive list of conditions that might result in a non-inclusive definition. It is better to have a broader definition of “mental health conditions” that includes the mention of “interaction with social and environmental barriers” in its definition to optimise the scope of the WFL for persons living with varying mental health conditions – with a list of conditions to be included only as non-exhaustive examples.
Additionally, it is unclear what phrases such as “important areas of functioning” and “relevant experts” refer to. We recommend that any definition of “important areas of functioning” either remain broad or include non-exhaustive examples. We further recommend that “relevant experts” include persons living with psychosocial disabilities as it is indispensable that persons living with the disabilities themselves are consulted.
Definition of discrimination
Pertaining to how the Tripartite Committee recommends defining discrimination, we at DPA are concerned as to how the limited definition of direct discrimination will assist in addressing the realities that persons with disabilities face when attempting to entre, maintain, and/or advance in employment. In particular, we are concern that there are no reasonable accommodation provisions to be included in the legislation itself. When we enquired as to why the Tripartite Committee has not recommended reasonable accommodation provisions to be included in the legislation itself, we were informed that the Tripartite Committee is concerned about making the legislation too onerous on employers. However, reasonable accommodations should not be thought of as a “onerous” or “burdensome” implementation on employers, but rather a useful tool that can help employers help their employees with disabilities.
Reasonable accommodations are essential modifications or adjustments to a job or workplace that enable persons with disabilities to perform the tasks of a given job. Examples of reasonable accommodations include (but are not limited to) sending or receiving documents in alternative formats, installation of ramps, allowance of various means of communications. In Singapore, there is much assistance to help employers implement reasonable accommodations – such as grants from the government (i.e. the Open-Door Programme, the Job Redesign Grant, the Accessibility Fund, etc.) which currently are under-tapped and under-utilised, and technical assistance from disability organisations such as DPA and others to help employers implement reasonable accommodations if employers are unfamiliar on how to do so.
However, despite such available assistance in Singapore, our research shows that employers often are unwilling to provide reasonable accommodations. We have also heard reports of employers providing accommodations but only to penalise the employee who requested such accommodations in the employee’s performance reviews or evaluations.
It is therefore unclear how the limited definition of discrimination will address such realities and discriminatory barriers that disabled people face on a regular basis.
We recommend that the WFL contains reasonable accommodation provisions that will provide protections to employees who require reasonable accommodations.
It is important to include other forms of discrimination – other than direct discrimination – in the WFL. Denial of reasonable accommodations, along with indirect discrimination and harassment are common forms of discrimination that not only persons with disabilities but also other minority demographics face and should be included to optimise the protections of such demographics.
the WFL, when defining what constitutes as “adverse” in an “adverse employment decision” can also specify that denial of reasonable accommodation constitutes as an adverse employment decision. This should especially be the case when the employer is made aware that financial assistance from government grants will cover the cost of the reasonable accommodation (should the reasonable accommodation acquire financial cost) and made aware of technical assistance from organisations to help implement a given reasonable accommodation (should the employer be unfamiliar on implementing a given reasonable accommodation), but the employer still deliberately chooses not to implement the reasonable accommodation – thus deliberately choosing to make the workplace unnecessarily punishing for their employees with disabilities.
Summary of our recommendations:
- Insert statements within the definition of disability that mentions how various impairments when in “interactions with social and environmental barriers” produce “substantial impact on an individual’s ability to carry out day to day activities”.
- Include psychosocial disability in the definition of disability. If mental health conditions is to remain as a separate protected characteristic, we recommend inserting a broader definition that does not result in an exhaustive list of various conditions and that includes the mention of interaction with social and environmental barriers.
- Incorporate reasonable accommodation provisions within the WFL. For example:
- Including other forms of discrimination – indirect discrimination, harassment, and denial of reasonable accommodations as forms of discrimination
- Specify what constitutes as “adverse” to include situations where employers have little to no reason not to implement the reasonable accommodation but deliberately chooses not to implement the reasonable accommodation resulting in poor or hostile working conditions
DPA welcomes further conversations with individuals/groups on working together to promote and actualise such and other recommendations.
