The important decision by the High Court of Justice to integrate people with disabilities into the job market sets that the absence of positive preference in the work place and by the same measure not promoting an employee because he cannot fill a full time role due to his disabilities is discrimination.
The Law of Equal Rights for People with Disabilities 1998 was enacted to protect the dignity and freedom of people with disabilities. This is due to recognition of the principle of equality that is taken from the Basic Law: Human Dignity and freedom.
The Law imposes an obligation for positive preference and binds employers to implement adjustments to the workplace even if this is subject to certain expenditures providing it is not too heavy an economic burden. This is with the assumption that not hiring an employee because of his disabilities that do not influence his ability to carry out the work strikes direct harm on human dignity, self-esteem and the ability to integrate into society. Thus the Law promotes the integration of people with disabilities into the job market in particular, and in an equal manner in society in general.
In the ruling recently handed down in the case of Rami Machmali versus the Prisons Service (High Court of Justice 6069/10 Rami Machmali versus Prisons Service), the employee served as a prison warden at the Megiddo prison and suffered medical problems that restricted the number of hours he could work. His application to move to a position that would allow him to advance in his work was dismissed a number of times by his superiors even though he was fit to carry out these jobs. The main claim was that the scale of his job would not allow his promotion.
Firstly, the High Court of Justice ruled that the employee met the criteria of a "person with disabilities" as set by the Law for Equal rights for People With Disabilities, and therefore the Prisons Service was obliged to make adjustments at the workplace that would allow for the employment of people with disabilities as long as this did not impose "too heavy a burden" on the employer.
The court also ruled that the Prisons Service had not proven that the roles that the employee had requested required a full time job and flexible work hours. Therefore the Prison Service had an active duty to adapt itself to the needs of the employee who suffered from disabilities in various ways including taking on the costs of his employment and paying his salary on a relatively higher basis than his output as long as an unreasonable economic burden was not involved.
Due to the long period that the employee has been in his current position and his good professional capabilities, and due to the fact that the Prisons Service had made no attempts to prove that it had made any genuine efforts to promote the employee despite his disabilities, the High Court of Justice accepted the petition and granted the employee a "personal" rank. In addition, it was ruled that the employee's court costs and lawyer's fees totaling NIS 50,000 should be paid. This was a relatively high amount than ruled in lower courts and this too has importance as a guiding example. The court as mentioned did not expand the expanse of the Law but strengthened the requirements of employers to implement adaptations in order to allow equal opportunities for employees with disabilities in the workplace.
Adv Gilat Vizel-Sabag is Founding Partner and Head of the Labor Law Department and Adv Yael Hadani is an Associate at Rachel Ben Ari, Adam Fish & Co. Law Firm.