In an interesting decision, the Victorian Civil and Administrative Tribunal explored whether the removal of bed poles in aged care facilities amounted to direct and indirect discrimination1.

Key points

  • A requirement that might disadvantage an individual cannot be held to disadvantage them within the meaning of the Equal Opportunity Act 2010 (Vic) (EO Act) if that requirement may also have the effect of saving their life.
  • A requirement has to have the effect of disadvantaging a cohort of persons with a protected attribute - it is not enough for the requirement to disadvantage only an individual with the attribute.

Background

Mrs Petrou is a 62-year-old resident of an aged care facility run by Bupa Aged Care Australia Pty Ltd (Bupa). Mrs Petrou was diagnosed with secondary progressive multiple sclerosis (MS) and moved into Bupa's facility in April 2014. MS sufferers present with varying symptoms. Mrs Petrou presented with severely reduced lower limb strength, moderately reduced upper limb strength, and fatigue.

Ms Petrou's MS meant that she found it difficult to get out of bed without assistance, and when she was in bed, she found it difficult to adjust the position of her body without assistance. As a result, she relied on a bed pole.

Since 1 July 2010, Bupa had had a policy in place regarding the use of bed poles. Initially the policy, amongst other things, required the individual assessment of patients to determine whether bed poles were appropriate. This policy was amended in April 2012 to ban the use of KA524 model bed poles.

On 5 November 2015, a safety alert was circulated as a reminder that Bupa does not permit the use of bed poles at its facilities. A further safety alert was circulated on 6 September 2016 which required immediate removal of all types of bed poles from Bupa's facilities. These safety alerts were disseminated in response to several coronial inquests into the deaths of residents of aged care facilities involving the use of bed poles.

Following the 6 September 2016 safety alert, the bed pole was removed from the Mrs Petrou's residence.

In response, Mrs Petrou filed four separate complaints under the Equal Opportunity Act2010 (Vic) (EO Act). Mrs Petrou alleged that Bupa: had indirectly discriminated against her because of her disability (Claim 1); had subjected her to detriment in the course of providing her with accommodation (Claim 2); had refused to make reasonable adjustments to her accommodation (Claim 3); and had discriminated against her in the provision of services (Claim 4).

Claim 1 - Indirect discrimination

Mrs Petrou claimed that Bupa had engaged in indirect discrimination within the meaning of section 9 of the EO Act, in that Bupa Facilities had imposed a requirement (the requirement for the bed pole to be removed) and that the requirement had the effect of disadvantaging her, as a person with a disability, and that such a requirement was not reasonable.

In determining whether there was a breach of section 9 of the EO Act, Judge Harbison considered whether Mrs Petrou's allegation of indirect discrimination met the three required elements of section 9 of the EO Act: that Mrs Petrou had a protected attribute, that Mrs Petrou had been subject to disadvantage, and that Bupa's requirement to remove bed poles was unreasonable.

Judge Harbison considered each of these elements separately.

Did Mrs Petrou have a protected attribute?

'Attribute' is defined under section 6 of the EO Act. As there is no requirement to prove a particular diagnosis, Judge Harbison was satisfied that Mrs Petrou possessed the attribute of disability on two separate bases, being MS and partial loss of bodily function (whether caused by MS or not).

Was she subjected to disadvantage?

'Disadvantage' is not defined under the EO Act, so Judge Harbison held that it therefore requires interpretation in a common sense and practical manner, having regard to the objectives of the EO Act. Judge Harbison said that there were two ways of looking at whether Mrs Petrou was disadvantaged by the removal of the bed pole:

  1. whether, as Mrs Petrou claimed, the requirement to remove the bed pole disadvantaged her because it increased her fear of falling when sitting on a bed and diminished her mobility and independence to turn herself in bed; and
  2. whether a person could claim to be disadvantaged by a requirement which may have the effect of saving their life. In this respect, Bupa Facilities argued that the requirement was actually beneficial to Mrs Petrou because it protected her health and safety, and avoided the potential for death.

Judge Harbison emphasised that a person's right to dignity and a sense of self-worth should not be under estimated, and considered that "any activity, however small, which enhances that dignity and self-worth is a significant advantage and any measure which diminishes even to a small part the ability to move is a disadvantage". Despite this, His Honour found it counterintuitive to describe a measure taken to remove an item which carries the danger of death, as a disadvantage.

Judge Harbison held that the policy was actually beneficial as it increased Mrs Petrou's safety made and avoided the potential for death, which made it difficult for him to conclude, from an objective point of view, that Mrs Petrou was disadvantaged by the policy, even though the risk of harm from the bed pole was small.

Importantly, Judge Harbison further determined that section 9 of the EO Act required Mrs Petrou to prove that the removal of bed poles has, or is likely to have, the effect of disadvantaging persons with an attribute. Judge Harbison held that an essential feature of indirect discrimination is that the requirement must disadvantage persons with the relevant attribute as a cohort, as opposed to an individual. In this instance, Mrs Petrou was unable to prove that the removal of the bed pole disadvantaged people with MS or people with partial loss of bodily function, as opposed to only disadvantaging her as an individual.

Was the requirement reasonable?

Subsection 9(3) of the EO Act provides guidance on the methodology of determining whether a requirement is reasonable, including five particular aspects that must be considered when determining the requirement's reasonableness. These include:

  1. the nature and extent of the disadvantage resulting from the imposition of the requirement,
  2. the costs of an alternative requirement; and
  3. whether reasonable adjustments or accommodations could be made to the requirements to reduce the disadvantage caused.

Judge Harbison further clarified that all the circumstances of each individual case must be taken into account in deciding whether or not a particular requirement is reasonable, and that the section is not wholly concerned with the modifications to a general requirement, condition or practice that might reasonably be made to accommodate one person's special needs.

Mrs Petrou argued that a blanket ban on the use of bed poles was unreasonable in circumstances where the government had not banned bed poles, some nursing homes still used bed poles, and the risk of danger or death from a bed pole was low or negligible. Mrs Petrou also argued that the blanket ban on bed poles was unreasonable because the policy did not distinguish between the individual circumstances of the residents or the basis on which they might need to rely on a bed pole.

Judge Harbison determined that the bed pole policy was reasonable, notwithstanding the possibility of implementing an alternative approach to manage the risk of danger of injury. Judge Harbison held that it is sufficient that the bed pole policy was one of multiple reasonable approaches available to Bupa in the circumstances, and that the mere fact that Bupa did not implement one of the other reasonable options available (e.g. banning specific types of bed poles), it did not make the blanket ban unreasonable.

Claim 2 - Detriment in providing accommodation

Mrs Petrou claimed that Bupa Facilities engaged in indirect discrimination by subjecting her to "detriment" in connection with the provision of accommodation, as prohibited by subsection 53 of the EO Act.

Judge Harbison confirmed that the word detriment must be construed broadly and beneficially in the light of the objectives of the EO Act, and that a psychological benefit or detriment is of importance. His Honour referred to the same approach taken when interpreting the meaning of "disadvantage" — although there is some practical detriment to Mrs Petrou, given that she could no longer use the bed pole, that particular detriment needed to be weighed against the clear advantage of removing the bed pole which had the potential to cause injury or death.

Mrs Petrou argued that there needed to be some limit on the actions of a nursing home in response to potential danger, and used the example that a nursing home would be wrong to require all residents to eat pureed food just because there was a risk of choking in nursing homes. However, Judge Harbison found that in this case, when the detriment of not being able to move freely in bed was weighed against the prospects of severe physical harm from the use of a bed pole, he was unable to characterise the removal of the bed pole as a detriment.

Claim 3 - Refusal of reasonable alterations to accommodation

Mrs Petrou claimed that Bupa had breached its obligation under section 55 of the EO Act as an accommodation provider for a person with a disability, by not allowing her to make reasonable alterations to her accommodation by way of attaching a bed pole to her bed.

As "reasonable alterations" is not defined under the EO Act, Judge Harbison's approach to the question of reasonableness under section 9 of the EO Act was replicated in his assessment of reasonableness under section 55 of the EO Act. His Honour also held that a bed pole is not an alteration to accommodation.

Claim 4 - Discrimination in the provision of services to Mrs Petrou

Mrs Petrou claimed that Bupa Facilities engaged in discrimination by refusing to provide services to her or by subjecting her to detriment in connection with the provision of services, as prohibited by section 44 of the EO Act.

Judge Harbison again held that the claim under section 44 of the EO Act revolved around the same issues discussed under section 9 of the EO Act. This required an assessment of whether Mrs Petrou suffered any detriment in the provision of a service, and whether Bupa was obliged under the EO Act to provide a bed pole to Mrs Petrou.

Judge Harbison relied on his earlier analysis of detriment, confirming that the evidence did not support the proposition that the removal of the bed pole was a detriment relevant for the operation of section 44 of the EO Act.

Defences available to Bupa Facilities

In the alternative, Judge Harbison said that even if he was wrong in his analysis of the four claims of discrimination made by Mrs Petrou, he was satisfied that Bupa could rely on two defences. Firstly, the defence under section 75 of the EO Act, which permits discrimination in circumstances where it is necessary to comply with obligations under the Occupational Health & Safety Act 2004 (Vic) and the Aged Care Act 1997 (Cth). Secondly, the defence under section 86 of the EO Act permitting discrimination that is reasonably necessary for the protection of the health and safety of Mrs Petrou and that of other residents in the care of Bupa.

Lessons for employers

Employers can take some comfort in the fact that a requirement, which may appear to indirectly discriminate, will not amount to indirect discrimination if any disadvantage is outweighed by the advantages that the requirement also provides, or if only an individual is disadvantaged by the requirement.

Whilst the employer may rely on various defences under the EO Act, and notwithstanding Judge Harbison's dismissal of Mrs Petrou's claims on the need to review alternatives in light of section 9 of the EO Act, employers should conduct a regular risk-benefit analysis and explore other alternatives to mitigate risks before imposing "blanket" bans or requirements.