After more than three years since its announcement during National Day Rally (NDR) 2021, the Workplace Fairness Legislation (WFL) was finally introduced in Parliament last month.
Advocating for the optimisation of the WFL has been one of DPA’s top advocacy priorities over the past three years as we gathered feedback from persons with disabilities on their experience with workplace fairness and discrimination and actively shared such feedback with the relevant entities such as Ministry of Manpower (MOM) – while writing commentaries on the topic extensively over the last few years.
Earlier this year, DPA published a report entitled “Achieving Fairness in Employment for Persons with Disabilities in Singapore” – a two-part report consolidating our advocacy work and recommendations over the past few years on the WFL.
We appreciate the time MOM has taken in dialoguing with us over the past few years, and we hope to remain in continuing conversation with them going forward. As the bill heads to Parliament, below are a few questions that we hope members of Parliament (MPs) will discuss during the debate on the WFL likely to be held in January 2025.
Definition of disability/mental health condition
According to the bill, disability and mental health condition will be defined as follows:
Disability: “means the fact that the individual has any one or more of the following: (a) autism; (b) any intellectual disability; (c) any physical disability; (d) any sensory disability”
Mental Health Condition: “means the fact that the individual has been diagnosed with any mental disorder by a medical practitioner registered under the Medical Registration Act 1997.”
The definition of disability is a circular definition (i.e. the proposed definition is more of an example rather than a definition). As we recommended, to be aligned with international best standards such as the Un Convention on the Rights of Persons with Disabilities (UN CRPD), the definition needs to capture the social dynamics of disability to be fully inclusive of the wide range of disabilities present in our societies. This is how other anti-discrimination legislations in other countries and jurisdictions define disability – i.e. a person with a disability being a person who has a “physical or mental impairment that substantially limits one or more major life activity” (ADA definition) – with such law in other jurisdictions further specifying or providing a list of non-exhaustive examples. Similarly, the definition of mental health will benefit by including this social dimension of social participation and/or life activities. As we have noted, the UN CRPD classifies mental health conditions (otherwise known as psychosocial disabilities) together with disability.
Additionally, the government needs to provide clarity on how particular disabilities are categorised according to each of the four disability types as noted to provide assurance to individuals who may be unclear where their particular disability falls within the four disability types.
[For more, see section 1.2.1 (pp. 28 – 30) in our DPA “Achieving Fairness in Employment for Persons with Disabilities in Singapore” report .]
Addressing More Common Forms of Discrimination Facing the Disability Community?
The bill aims to take a narrow definition of discrimination by staying within the realm of direct discrimination – and defines discrimination as when an employer makes “an employment decision that adversely affects an individual (a) on the ground of a protected characteristic of the individual; or (b) on the ground of two or more reasons, one of which is a protected characteristic of the individual.”
While we appreciate that this will cover all aspects of the employment cycle (i.e. from hiring, to promotion, to dismissal, etc.), as we have outlined extensively, persons with disabilities experience more than direct discrimination, such as indirect discrimination and discriminatory-related harassment. Perhaps the most common form of discrimination faced by persons with disabilities according to our research and conversations with persons with disabilities over the years, is the denial of reasonable accommodations. As we have outlined, there are very practical ways to incorporate reasonable accommodation protocols as part of anti-discrimination law in a manner that will produce win-win outcomes for employers, employees, and overall society, and have thus strongly recommended that the WFL recognise the denial of reasonable accommodations as a form of prohibited discrimination and that the WFL includes provisions on how employers can implement reasonable accommodation protocols.
While one might be able to argue that the denial of reasonable accommodations constitutes as an “adverse” employment decision, by not specifying or making any mention of the need to provide reasonable accommodations, the bill makes it difficult for one to be successful in such an argument.
As we have thoroughly outlined, in addition to the denial of reasonable accommodations being a prohibited form of discrimination under international conventions such as the UN CRPD, when employers are not required to provide reasonable accommodations, persons with disabilities face significant difficulty in finding, securing, maintaining, and/or advancing in employment. At times, persons with disabilities will have great difficulty in even getting a foot in the door of attaining employment – if reasonable accommodations are not provided in the interview process.
We note the government’s plans to introduce a Tripartite advisory on reasonable accommodations, and we are definitely appreciative that the government has invited us to work with them to optimise this advisory. Having noted this, the government needs to address the following points which we hope will be brought up by MPs during the upcoming debate on the WFL.
- Avoiding Unintentional Messaging on Reasonable Accommodations
While we believe the upcoming Tripartite advisory has potential to raise awareness on the importance of reasonable accommodations, by not including reasonable accommodations protocols in law, the government risks the unintended consequence of workplaces continuing to not understand the importance of reasonable accommodations. As we have noted, a Tripartite advisory is essentially a document outlining best practices – it has no binding powers of enforcement. Thus the main concern of the approach of an advisory is that it will send the wrong message that reasonable accommodations are “good to have but not necessary” – when in reality, reasonable accommodations, as the definition suggests, are essential and necessary to persons with disabilities. By not including reasonable accommodation protocols in law, the government will continue to leave it up to chance as to whether an employer will implement something as important and essential to the disability community as reasonable accommodations in Singapore workplaces.
- Ensuring the Provision of Reasonable Accommodations?
Additionally, by not including reasonable accommodation protocols in law, the government will face the dilemma and difficulty of ensuring reasonable accommodations are provided by employers who will be the least likely to implement reasonable accommodations if left up to employers to do so on a voluntary basis. By choosing the path of awareness raising rather than law, the government will face the “preaching to the choir” dilemma that is commonplace in awareness raising efforts. For example, once the upcoming Tripartite advisory is released, and the government, for instance, holds a series of workshops to raise awareness of the contents of the advisory, the employers who are the most likely to attend such workshops are there because they already understand the importance of diversity and an inclusive workforce, whereas the employers who are least likely to attend such workshops are employers who do not understand the importance of diversity or an inclusive workforce, and hence would not be bothered to attend such workshops in the first place.
According to our research and conversations with persons with disabilities, it is not uncommon for persons with disabilities to face difficulty in even asking their employers for reasonable accommodations – especially in cases where the employer is generally not amicable or welcoming. By continuing to leave the provisions of reasonable accommodations in workplaces on a voluntary basis, it can be said that the workplaces where persons with disabilities will face the most difficulty in attaining reasonable accommodations are the workplaces that will contain employers who will be the least likely to implement reasonable accommodations if it is left up to employers to do so on a voluntary basis. The government thus needs to answer how they plan to navigate this, and we hope that this will be discussed in the upcoming debate on the WFL.
[For more on our recommendation of reasonable accommodation protocols in law, see section 1.1.1 (pp. 10 – 22) in our DPA “Achieving Fairness in Employment for Persons with Disabilities in Singapore” report.]
Implementation and Enforcement of the WFL
The government has noted that they would like the WFL to work in conjunction with the current Tripartite Guidelines on Fair Employment Practices (TGFEP) – essentially intending to use the TGFEP to elaborate on aspects of discrimination and fair employment that are not specified in the WFL.
However, as we have noted, there are currently gaps in the TGFEP – including how the TGFEP is circulated and hence enforced – especially on matters concerning the disability community. For instance, as we have highlighted, one striking finding in our research and conversations with persons with disabilities is how every male with an invisible/non-apparent disability informed us that one of the most common frustrations they face is job application forms enquiring about national service (NS) status. As many of such individuals were exempted from NS, they feel that such questions put them in a situation where they might have to disclose their disability. Such individuals have informed us that even if they leave such questions blank on the application form, they often still face hiring managers who will enquire why they left such questions blank – often noting that they feel they have no choice but to disclose their disability at that point.
This shows potential room for improvement in how the current TGFEP are circulated and hence enforced because the TGFEP, while currently lacking specifications on several areas of employment, does make specifications on the enquiry of NS status – noting: “Employers should not request for other personal details, for example photograph and national service [NS] liability, as these generally should not be considerations in assessing an applicant’s suitability. This personal information can be obtained at point of job offer. If there is a need for the information before the job offer, the job application form should state the reasons, which should be job-related”. However, in all cases where persons with disabilities raised this concern pertaining to enquiry of NS status, the reason was not stated in the application form nor did the hiring manager explain why they enquired about their exemption.
[To be clear, the above example is not to suggest that men with disabilities face additional barriers or are more discriminated than women with disabilities, but rather that there is room for improvement in how the current system of the TGFEP is enforced.]
This raises questions on how the WFL will be optimally enforced. The government has emphasised repeatedly that they strictly do not want the WFL to replace the TGFEP but rather for the WFL to work in conjunction with the TGFEP. However, the afore-mentioned example suggests that the current methods of how the TGFEP are circulated and enforced may require enhancing if the WFL is to work optimally in conjunction with the TGFEP, and hence to be optimally enforced.
We hope that such important questions of the technicality of how the WFL can be optimally enforced will be brought up by MPs in the upcoming debate on the WFL.
[For more, see section 1.2.2 (pp. 30 – 34) in our DPA “Achieving Fairness in Employment for Persons with Disabilities in Singapore” report]
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What You Can Do
We have raised such points and others repeatedly over the last few years when advocating for the optimisation of the WFL, and we currently are in conversations with MPs asking them to raise such points during the debate on the WFL which will likely be held in January 2025.
To increase the chances of such important points being raised, you can assist us by writing an email to your MP asking for them to raise such points during the upcoming Parliamentary debate
Click here for more.
