Discrimination against disabled workers continues to occur at a disheartening frequency, causing undue harm to society’s more vulnerable and depriving the workforce of valuable human capital. Most cases emerge as a result of management’s inadequate understanding of their obligations under the Commonwealth Disability Discrimination Act 1992, which applies to public and private employers across Australia.
The object of the DDA is to promote equality and eliminate discrimination on the ground of disability. Proper compliance with its provisions will allow all parties to reap the benefits of productive employment, while avoiding inevitably Pyrrhic litigation.
In the employment context, the central obligation under the DDA is that an employer must make all reasonable adjustments to ensure that their employees with disabilities can carry out the inherent requirements of their job. They must make those adjustments up to the point that it would cause them unjustifiable hardship — a high bar. If, once the employer has made those adjustments, the employee still cannot perform the inherent requirements of their job, only then can the employer “lawfully discriminate” against them because of their disability by, for instance, sending them on leave without pay or terminating their employment. These obligations also apply to prospective employees.
To determine the point at which the hardship caused by the reasonable adjustments becomes “unjustifiable”, all relevant circumstances must be taken into account. For guidance, the DDA sets out a list of non-exhaustive factors, including the costs of making the adjustments and the financial circumstances of the employer.
It is difficult to conceive of circumstances where an employer with the resources of the federal government could successfully argue that a non-fanciful adjustment would cause it unjustifiable hardship. That is not to say such circumstances would not exist where some inherent characteristic of the disability would prevent the person from carrying out their job. Where managers are faced with a situation involving an employee with a disability that may affect their performance at work, the preferred approach would be to: 1) determine what the “inherent requirements” are of the pre-adjusted position; and then 2) look to the adjustments that could be made to permit the employee to perform them.
The case law provides colourful illustrations of what constitute the “inherent requirements” — or essential duties — of a position: it is an inherent requirement for a worker at a pharmaceutical plant to have a tolerance to penicillin; it is an inherent requirement for a pilot to be under the age of 60 (most countries prohibit older individuals from flying in their airspace); and it is an inherent requirement for a soldier to be able to bleed without the risk of infecting their comrades with HIV. In each of these cases, the courts held in favour of the employer, where even if reasonable adjustments were made to the point of imposing unjustifiable hardship, the employee would nevertheless be unable to fulfil those inherent requirements, and so each was lawfully dismissed on that basis.
It is easy to envisage more basic examples of inherent requirements that could be fulfilled through making reasonable adjustments. If an employee’s medical condition causes them to fatigue, a reasonable adjustment could be to reduce their working hours. If an employee’s anxiety is triggered by a particular supervisor, a reasonable adjustment could be to change their reporting lines. If an employee’s disability makes their commute to the workplace burdensome, a reasonable adjustment could be to relocate them to a more accessible office. In each example, if the employer was to refuse such adjustments, they would have unlawfully discriminated against the employee, unless they were able to establish that the adjustments would impose on them unjustifiable hardship.
Since 2001, the number of working age individuals on disability support for psychiatric conditions has increased by about 50%, making these issues more salient than ever. They often arise in the context of an employee’s apparent underperformance — invariably sensitive situations that require a delicate balance between protecting the well-being of the employee and maintaining the productivity of the enterprise. If the underperformance may be related to the disability, the matter will be best dealt with at first instance through a medical assessment of the individual’s fitness for duty. The medical assessor, upon request, can provide important guidance on what (if any) reasonable adjustments should be made.
Taking such steps proactively may allow employers to avoid situations such as in Huntley v Department of Police and Justice (Corrective Services NSW), where the employer failed to turn its mind to both the inherent requirements of the position, and the reasonable adjustments that could be made. The court awarded the employee $180,000 in damages, plus interest. Even leaving monetary factors to one side, it is incumbent on all, and particularly APS employees, whose values are enshrined in a statute of their own, to remain cognisant of the heavier hardships borne by others.
John Wilson is managing legal director at Bradley Allen Love. He acknowledges the assistance of his colleagues Ian Brettell and Kieran Pender in the preparation of this article.