Discrimination against employees with disabilities is a significant problem and a difficult issue for employers to deal with.
Every case must be considered on its own merits.
Best practice guidelines to minimise risk do, however, make the job of employers easier.
Of particular concern to employers are situations where an employee can't perform the genuine and reasonable requirements of their job because of injury or illness.
When deciding whether to terminate employment in such circumstances, an employers obligations under discrimination, occupational health and safety and employment legislation are all relevant considerations.
In most cases it is unlawful to directly or indirectly discriminate against an employee because of their impairment.
The Workplace Relations Act 1996also makes it unlawful to terminate an employee for a discriminatory reason, including because they are suffering from a physical or mental illness or disability.
There is no formula or set method for ensuring an employer does not breach discrimination or industrial relations legislation.
Whether found in discrimination or industrial legislation, the prohibitions on disability discrimination are not absolutely rigid – there are exceptions.
If an employee is unable to perform the genuine and reasonable, or inherent, requirements of the job (see Disability Discrimination Act 1992), then it may be "unlawful" to terminate the employee's employment. An employer must, however, be able to establish that it would not be reasonable, in all circumstances, to provide special services or facilities to enable the employee to perform the requirements of the job, on the basis that their provision would impose "unjustifiable hardship" on the employer.
Furthermore, an employer may assert that, even if the employee were provided with special services and facilities, the employee would still be unable to perform these requirements.
The Workplace Relations Act 1996 says an employer may not terminate an employee for a reason that is discriminatory (being because they have a disability), unless the disability results in them being unable to perform the inherent requirements of the position.
The variety of obligations in relation to employment discrimination adds to the complexity of the environment in which an employer makes decisions about the employment of workers suffering from an injury or illness which is affecting their ability to work for an extended but indefinite period.
WHAT SHOULD EMPLOYERS DO?
To avoid engaging in unlawful conduct, an employer should:
- Maintain contact with the injured employee on a regular and frequent basis;
- Clearly identify the inherent requirements of their pre-injury job;
- Consider reasonable accommodations that may assist injured employees to return to the workplace performing their pre-injury duties;
- Exercise fairness and reasonableness in determining an injured employee's work capacity;
- Be reasonable;
- Keep notes of discussions with injured employees about their situation/status and formalise any offer of modified duties for a specified period;
- Remember that as an employer you have OH&S obligations to not only injured employees, but also to other employees of the workplace;
- Decisions that result in an employee's termination should be clear, unequivocal and based on up to date medical evidence. An employer should clearly demonstrate that termination was a last resort, but necessary for the businesses operational requirements. Each decision needs to be approached on a case by case basis.;
Employers need to ensure the viability of their business enterprise, which may require employing someone on a permanent basis to perform the injured person's role. On the other hand an employee may be unable to return to work for a period (which may be hard to estimate precisely) through no fault of their own. The interests of the injured or ill employee also need to be protected.
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.