The spectre of claims under anti-discrimination legislation (and the related media) appears to drive nervousness in some businesses. This is especially the case when dealing with longer term ill or injured employees. In this blog we make two suggestions about how to handle this issue in the context of non-work related illness and injury:
- Be open and transparent with employees when determining what their illness or injury means for their ability to work, and
- In deciding whether a business is required to make ‘reasonable adjustments’ in the workplace to enable a disabled worked to continue working, the inherent requirements of the role must be able to be identified with ease and precision.
These suggestions are discussed in more detail below.
Employee illness or injury – talk don’t whisper…
When an employee suffers a non-work related illness or injury there is often reluctance to ask exactly what the illness or injury means in terms of the role at work. This may be due to concerns about privacy, general embarrassment about discussing medical issues or a lack of understanding of discrimination law. None of these is, of itself, a reason not to have a direct conversation with an employee or their treating physician (with the employee’s agreement), about the exact nature of the limitations on the employee’s abilities arising from the illness or injury. The focus of these discussions should be on the consequences of the disability in terms of the workplace and the employee’s work responsibilities.
For example, in a recent decision of the Federal Circuit Court of Australia it was found that the employer unlawfully discriminated against an employee with Crohn’s disease including because the employer decided the employee was permanently unable to perform her ‘pre-illness’ role based on its misunderstanding of the medical assessment of the employee. The employer unilaterally determined that the employee could not perform a particular role (that the employee had been performing for almost 6 months). What the employer should have done was consult the employee (and her doctor) about her illness and what it meant in terms of her capacity to work rather than make assumptions about the employee’s capability.
Return to work plans – the PD is key!
A related issue arises from the ‘inherent requirements’ exception to the prohibition on disability discrimination.
Generally, discrimination in employment on the basis of an employee’s disability will not be unlawful if the employee would be unable to carry out the ‘inherent requirements’ of their role even if the employer made reasonable adjustments for the employee.
In order to rely on this exception the inherent requirements of the particular role must be identified and considered. Inherent requirements are the non-negotiable elements of the employee’s contracted role. Ideally every role in an organisation will have a specific position description which includes a list of specific essential requirements of the role, including location of work – preferably under the heading ‘Inherent Requirements’! In the absence of such a position description, consultation with the particular employee (and potentially assessment against others in the same or similar roles) will usually be required to determine what the inherent requirements of the role are. Further, in determining what, if any, reasonable adjustments may be made to a role, consultation with the particular employee will also be required.
Whether adjustments are reasonable will be specific to the particular employee and may differ even as between employees with the same illness or injury where the illness or injury manifests differently between the employees in terms of the ultimate ‘disability’.
This process will be separate from that for establishing any necessary gradual and short term return to work plan.