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.

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