Epilepsy in the workplace: know your rights as an employee and an employer

Some people worry that telling an employer about their epilepsy might affect their chance of getting a job or being treated fairly at work. Although discrimination can happen, the Employment Equity act aims to protect you from discrimination, and help your employer to treat you fairly and support you at work. Having the right information about your epilepsy can help employers to do this.

Telling your employer about your epilepsy

South Africa has committed itself not only to overcome the legacy of racial and gender discrimination, but also disability discrimination especially, in the workplace, in order to afford persons with disabilities an opportunity to participate fully in the labour market without being unfairly discriminated against.

The Labour Act contains an equality and non-discrimination clause intended to provide for the creation of opportunities for work and employment of persons with disabilities. This Act prohibits discrimination against employees on several grounds, including disability.

  • Employers have responsibilities under the The Occupational Health and Safety Act – for employers to be able to meet health and safety regulations, they need to know whether their employees have any medical conditions that could affect their work. Employers can only ask you questions about your health to help keep you and others safe at work, and to help you to be able to do your job. If your employer knows about your epilepsy they may make changes to your job or environment to make it safer for you. If you don’t tell your employer, you can’t hold them responsible for not doing safety assessments for you.
  • The Occupational Health and Safety Act, 1993, requires an employer to bring about and maintain, as far as reasonably practicable, a work environment that is safe and without risk to the health of the workers. 
  • However, it is not expected of the employer to take sole responsibility for health and safety. The Act is based on the principle that dangers in the workplace must be addressed by communication and cooperation between the workers and the employer. The workers and the employer must share the responsibility for health and safety in the workplace. Both parties must pro-actively identify dangers and develop control measures to make the workplace safe.
  • Employers are expected to consider making reasonable adjustments – if your employer knows about your epilepsy, they can consider making reasonable adjustments to your work or environment for you. But if your employer does not know about your epilepsy, you can’t hold them responsible for not making reasonable adjustments that may help.
  • The people you work with will be more able to help you if you have a seizure – often people feel more comfortable with epilepsy if they understand it and know what to do if someone has a seizure. This might help you, and them, feel more confident about how to help you if you have a seizure at work.

When is the best time to tell a new employer?

If you decide to tell your new employer about your epilepsy, there are several opportunities for you to do this.

  • You could include a covering letter with your application, explaining about your epilepsy. This could include details from your GP or neurologist about your epilepsy. This may help your potential employer to understand about your epilepsy before you have an interview.
  • You might mention it if you are invited for an interview, and talk about it face to face. This gives you an opportunity to sell yourself, and your skills and experience, before mentioning your epilepsy.
  • You might mention it at a final interview, or when you are offered the job.

Once you have told your new employer about your epilepsy, they might do a risk assessment and consider reasonable adjustments. They may get medical advice, or ask a health and safety or occupational health expert to help.

Information for employers

When employing someone with epilepsy, it is important to consider their individual situation, and base any decisions on fact. This means looking at their epilepsy and the effect it might have on their work. Talking to them about what their epilepsy is really like, and how it might affect their work, is more helpful than making assumptions about how it affects them.

Asking health-related questions

Under the Employment Equity Act, employers are not allowed to ask questions about an applicant’s health in any written form or in an interview, until the applicant has been offered a job, or has been placed in a pool of successful candidates to be offered a job.

All questions asked must deal only with the ability of the applicant to perform the tasks of the job. Anything that is considered beyond that could be considered discriminatory. An employer can describe the demands of the position and then ask if the applicant is able to meet those demands. The interviewer need only know whether or not the applicant can perform the job, not the exact reasons why the applicant cannot perform the job.

Recruitment

The Equality Act means that you need to consider a person with a disability fairly, along with all other applicants for a job. It does not stop you employing the best person for the job and it does not mean that you have to employ someone with a disability because of their disability, if they are not the best person for the job.

Job adverts should only ask for skills and qualifications that are genuinely relevant and don’t put people with disabilities at a disadvantage. For example, only ask for a driving licence if it is a requirement of the job. If a skill or qualification is needed for the job, it is not discrimination to ask for it.

Reasonable adjustments

Under the The Occupational Health and Safety Act, 1993, employers are required to make ‘reasonable adjustments’ so that a person with a disability is not at a disadvantage compared to someone without a disability.

You can ask about an employee’s health if it helps you to make reasonable adjustments. If you ask questions that are not relevant to the job, or you use someone’s health as a reason for dismissing them, this could be discriminatory.

Not everyone with epilepsy will need adjustments and any that are needed will vary, depending on the person’s needs.

Adjustments that may be helpful to consider for someone with epilepsy include:

  • making their workspace safer in case they have a seizure
  • avoiding lone working, so that someone else can help if they have a seizure
  • exchanging some tasks of the job with another employee’s tasks
  • adapting or providing equipment or support to help them do their job
  • time off for medical appointments that is separate from sick leave.

What is ‘reasonable’?

What is a ‘reasonable’ adjustment depends on the situation. Some general guidelines for working out what is reasonable include:

  • how practical the adjustment is to make
  • how effective the adjustment would be in helping the employee
  • how it might affect other employees
  • the cost of making it and your financial situation. You will need to pay any costs for reasonable adjustments that are made.

You may also need to make adjustments if someone develops epilepsy while they are employed by you. It is worth remembering that some people’s epilepsy can change over time – for example, if their seizures become controlled (stop happening). So the need for reasonable adjustments may change over time.

Sources: Epilepsy Society UK, Epilepsy South Africa, Saica