NZ Code of Practice 2021-22
Obligations of Tertiary Providers
All organisations, including all tertiary providers that offer goods, services, public facilities, transport, employment, education, training and accommodation must provide reasonable accommodations for disabled people defined under the New Zealand Human Rights Act.
This includes all aspects of providing an inclusive environment, such as enrolment procedures, teaching practices, support services, the provision of enrolment information or course material and so on.
Discrimination occurs when a disabled person is treated unfairly or less favourably than someone else, for example a non-disabled person, and such treatment cannot be justified. When a disabled learner is declined enrolment to a course on the grounds of disability without assessing how they could complete the course with learning supports, or upon entry to the course a disabled learner is refused learning supports (reasonable accommodations), such practices constitute discrimination.
Indirect discrimination occurs when a rule or practice exists which appears neutral, but in fact has a detrimental effect on a person. For example, placing enrolment information and forms on a website that is inaccessible for screen readers without alternatives being available, such as Word documents.
Discrimination may also occur when a tertiary provider fails to provide reasonable accommodations (learning support) in relation to a disabled person and cannot show the failure is justified.
Reasonable accommodations include:
- Assessing whether particular modifications or learning supports would allow a disabled learner to enrol in a course by talking to them about what they require.
- Making adjustments to the facilities or how a task is completed.
- Supplying additional training or support.
- Acquiring or modifying equipment.
- Modifying instructions, communication processes or information manuals.
- Modifying procedures for testing or assessment.
- Providing a note taker, reader/writer, sign language interpreter or other support staff to improve reading and communication.
- Providing regular support from staff to discuss support needs.
A tertiary provider must be able to give a justification for not providing reasonable accommodations on the following grounds, and be able to show evidence that they have tried to find a solution to these issues with the disabled person and their support networks:
a. Unreasonable disruption
b. Undue hardship
c. A risk to health and safety.
According to the Human Rights Commission and the Office of the Ombudsman (2019):
- It is important that a service provider, employer, or education organisation bear in mind the need to provide reasonable accommodation in all actions, services and decisions.
- Individual requests for reasonable accommodation must be considered constructively and careful thought given as to whether any modifications can be made to assist persons with disabilities to participate, for example, in a course of study.
- Every reasonable effort should be made to accommodate people with disabilities, and in circumstances where this is not practical, alternative options should be explored.
- It is important to clearly communicate with the individual who has asked for reasonable accommodation when considering their request, and advise what you will or won’t do.
- The presumption that a service provider, employer, or education organisation will provide necessary accommodations is balanced against “reasonableness”. If there is a risk of harm to the individual or others, but measures can be taken to reduce the risk without unreasonable disruption, then the service provider, employer, or education organisation should take those measures.
- If the risk or the measures necessary to reduce the risk to a normal level are unreasonable, then a service provider, employer, or education organisation may be justified in not providing the accommodation.
Consideration must be given as to whether modifications can be made to assist a disabled person to participate in a course of study. It is important that all staff are given guidance and training in the use of non-discriminatory practices, so they’re aware of these legal obligations.
While there may be an exception if a disabled learner cannot complete the core components of a course, staff must be able to justify such an exception and thought must be given to how modifications can be made, including discussing possible solutions with the disabled person and their support networks.
Teaching staff should look at alternative ways a disabled learner could complete a task. There may be a disability-related solution that teaching staff are unaware of.
Staff should remember learners are being trained to take on a range of roles in an industry. For example, learners enrolled in nursing training can take on professional roles in hospitals, GP practices, nursing education, case management, poison control centres, and nursing administration, and so on. Training pathways must consider these wider roles in setting core components (also called inherent requirements).
12. Reasonable accommodation of persons with disabilities in New Zealand. The Human Rights Commission and the Office of the Ombudsman. 2019: https://www.hrc.co.nz/files/7814/4848/7923/ imm_reasonable_accommodation_guide.pdf