Australia: Hidden disabilities in the workforce and inadvertent discrimination

A recent case before the Victorian Supreme Court of Appeal, Ferris v State of Victoria [2018] VSCA 240, serves as a reminder for employers that they can be found guilty of unlawful discrimination even if they were unaware of their employee’s disability, or the discriminatory effect of its requirements on individual employees.

Discrimination occurs when a person with a disability is treated differently to a person without a disability. This can be either ‘direct’ discrimination, or ‘indirect’ discrimination. Direct discrimination refers to a person being treated less favourably than another person because of certain personal characteristics, such as age, disability or gender. Indirect discrimination refers to an unreasonable rule or policy which applies to everyone equally, however due to a person’s attributes, they are unfairly affected.

Under state and federal anti-discrimination legislation, disability is very broadly defined and is inclusive of an injury, illness or medical condition. It can be either temporary, or permanent.  At general law, the term ‘disability’ extends far further than its ordinary meaning. Many of the conditions that would cause an employee to be considered disabled are often non-visible or “hidden”. Typical examples would be depression, dyslexia, epilepsy, autism, cancer or chronic pain. An employee might have long periods of good health, whilst being unable to work other periods. With some of these non-visible disabilities, an employer may not be aware that the disability exists and can inadvertently find themselves indirectly discriminating against an employee.

Ferris v State of Victoria [2018] VSCA 240

Mr Ferris was a store supervisor in a prison, who was dismissed for misconduct, including swearing in an aggressive manner to a prisoner and not properly accounting for or banking monies received in the course of his duties.  Mr Ferris suffered from type 2 diabetes, and brought a case before the Victorian Civil and Administrative Tribunal, alleging discrimination under the Equal Opportunity Act 2010 (Vic). Mr Ferris alleged his employer, the Department of Justice and Regulation, discriminated against him by treating him unfavourably by imposing unreasonable working conditions on him. As a result, he was unable to regulate his insulin levels by eating or taking breaks, which negatively impacted his health.

The facts of this case highlight the difference between ‘direct’ and ‘indirect’ discrimination.

Direct discrimination

Mr Ferris argued that the aggravation of his condition of diabetes caused him to be irritable, short tempered and unable to properly attend to his work, and these manifestations of his disability led to the acts which were relied upon to support the dismissal.

The definition of “disability” in the Equal Opportunity Act 2010 (Vic) expressly includes “behaviour that is a symptom or manifestation of a disability”. As the High Court held in Purvis v New South Wales (Department of Education and Training) [2003] HCA 62: “To interpret the definition of ‘disability’ as referring only to the underlying disorder undermines the utility of the discrimination prohibition in the case of hidden impairment.”

  1. In Mr Ferris’ case however, the Tribunal found that he did not establish a link between the manifestations of his disability and the misconduct. He did not give evidence that he was unable to manage the finances which were entrusted to him because of any of the manifestations of his disability. With regards to swearing at a prisoner, Mr Ferris’ own evidence was“that he was not speaking abusively to a prisoner, but was using language which was accepted within the prison as a familiar but respectful way of speaking to prisoners.”

The Supreme Court of Appeal recently upheld the Tribunal’s decision, finding that it was far too speculative to suggest that the disciplinary charge arising out of his abusive treatment of a prisoner was a manifestation of his condition of diabetes.

Indirect discrimination

However, whilst dismissing his claim of direct discrimination, the Victorian Supreme Court of Appeal upheld the Tribunal’s finding that the employer had indirectly discriminated against Mr Ferris as he was required to work unreasonable hours which disadvantaged him as a diabetic. A large increase in the number of prisoners led to an increased workload, meaning he was not able to take appropriate breaks or regulate his diet, and the workload caused him stress.

Judge Harbison stated that:

“It might seem a harsh result to find a respondent guilty of indirect discrimination in a situation where that respondent has no actual knowledge of the impact a disability will have on the requirement which it has imposed on its employees. However, it will often be the case that a respondent to a claim of indirect discrimination has no knowledge of the discriminatory effect of its requirements on individual persons with a disability.”

Importantly Judge Harbison noted that the employer should have followed up with Mr Ferris when it noticed the medical section on his employment form was left blank. Mr Ferris gave evidence that at the time he applied for the job, he did not consider that his diabetes affected his abilities and he did not regard it as a disability. Because of his failure to disclose his condition, Mr Ferris was therefore unaware of the procedures the employer had in place to deal with medical conditions that would have prevented the discrimination from occurring.

Learnings for employers

  1. A disability extends to behaviour that is a symptom or manifestation of a disability. Discrimination therefore can occur in response to the behaviour that results directly from the disability, not just discrimination based on the underlying condition.
  2. It is irrelevant whether the person engaging in discrimination is aware of the employee’s disability or whether that person considers the treatment to be unfavourable. Additionally, it is not relevant what the employer’s motive might be for the discrimination.
  3. Where employers do have knowledge of the disability of an employee, and no alternate explanation exists for an employee being treated less favourably, it may be possible for the employee to argue that the less favourable treatment was as a result of the disability.
  4. There are important limitations to this responsibility.  Where an employee is unable to perform the ‘inherent requirements’ of a role, even after the employer has made any reasonable adjustments to that role, it will not be discriminatory to treat the employee less favourably.  However, ‘inherent requirements’ are not the same as an employee’s ‘position description’. The ‘inherent requirements’ of a job vary, but they will generally encompass the ‘essential duties of a role’, and the ability to perform a role safely, lawfully, and productively and with the required quality.  
  5. Given the prevalence of less visible or “hidden” disabilities, employers need to have proper procedures in place to prevent indirect or “inadvertent” discrimination. Employees may be reluctant to disclose their disability given the stigma, prejudice and stereotypes which have traditionally surrounded disabilities in the workforce. To minimise the risk of indirect discrimination occurring, and to encourage the disclosure of medical conditions to enable reasonable adjustments to be made, employers should:
  1. Actively communicate the resources, policies and procedures available to accommodate disabilities. This will encourage employees to disclose their disability, or simply advise their employer if they are experiencing difficulties in the workplace.
  2. Identify the ‘inherent requirements’ of each role.  This is an important part of assessing whether any rules, policies, or conditions imposed are genuinely necessary, and in turn whether they could potentially become indirect discrimination.
  3. Once the inherent requirements are identified, monitor working conditions and consider whether increased workloads may indirectly discriminate against employees who may have a disability.
  4. Pay attention to omissions on employee information forms concerning health conditions and disabilities and make sensitive enquiries for medical information which relates to the inherent requirements of the role.
  5. Provide a workplace environment where employees feel encouraged to disclose any pre-existing or arising medical conditions and feel confident that their confidentiality and privacy will be preserved.
  6. Where an employee demonstrates behaviours that are out of character, for example, being unusually irritable, lethargic, emotional, or if their performance deteriorates without explanation, employers should sensitively enquire about the employee’s health. Being too quick to discipline or instigate performance improvement measures may inadvertently subject the employee to discrimination, even if the employer is not aware of the disability.

Approximately 2.1 million Australians of working age (15 – 64 years) have a disability. Only a small proportion use a wheelchair, cane, crutches or walker which signals the existence of a disability. More often than not, disabilities are not visible or immediately obvious to others, such as mental illness, chronic pain or diabetes. While it may be tempting for employers to think that avoiding any knowledge of an employee’s condition is the best way to avoid liability, employers can still be found to have unlawfully discriminated against employees, even when the employer was not aware of the employee’s disability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions