Employing People with a Disability | Part 1

These webinars will give insight and support into the legal and employment processes when employing someone with a disability.

Intro

Welcome to the first presentation from the National Retail Association on employing people with a disability. My name is Thomas Parer, and I’m a Workplace Relations Advisor with the National Retail Association. We are an industry association that is the modern voice of retail in Australia. We represent and support employers in the retail and…

Group 61@2x

Duration: 14:32 min

Welcome to the first presentation from the
National Retail Association on employing people with a disability.

My name is Thomas Parer, and I’m a
Workplace Relations Advisor with the National Retail Association. We are an
industry association that is the modern voice of retail in Australia. We
represent and support employers in the retail and quick service industries with
training and advice on a number of employment-related matters, including
employing people with disabilities.

This presentation has been created to assist
employers to better understand their obligations with respect to employing
people with a disability, and the benefits of creating a more inclusive and
accessible workplace.

In this presentation, I will be using what
is called, person-first language, where we instead refer to a person before
their diagnosis. For example, you will hear me use the term ‘person or people
with a disability’ throughout, rather than disabled or handicapped person. This
is generally regarded as best practice, because it aims to emphasize the
person, beyond a condition they have.

That being said, some people with a
disability may have differing opinions. For example, many people in the deaf
community prefer being referred to as a ‘deaf person’, as being culturally deaf
can be a source of positive identity and pride.

Ultimately, when communicating with an
employee with a disability, you should be led by them in terms of your use of
language about their disability to ensure that they feel comfortable and
supported by you at work.

We’ve broken down the agenda for this
presentation into a few main areas.

In this first webinar, we’ll start by
looking at some statistics and the benefits of employing people with a
disability, before we move on to understanding an employer’s obligations to
employees with a disability under discrimination law, what disability can look
like, how to create an inclusive recruitment process, and finally,
understanding disability harassment and the risks for employers not acting
against it.

Stay tuned for the next webinar where we’ll
unpack how employers can accommodate employees with disabilities in the
workplace, and some of the exceptions to discrimination law, such as where
accommodating an employee’s disability would impose too large a burden on the
employer, or where an employee cannot perform the inherent requirements of a
role.

First,
it’s relevant to consider the prevalence of disability in Australia, and some
other data relating to employees with disabilities.

According
to Australian Government statistics, more than 4 million Australians, or around
1 in 5 Australians, have a disability. With this in mind, it is quite likely
that your business already has employees with a disability, whether you know it
or not.

Employing
people with a disability can have unique benefits, with many employers reaping
the benefits of creating disability inclusive workplaces.

For
example, employment costs for people with a disability can be as low as 13 % of
the employment costs for other workers, and workers’ compensation costs for
people with disability are as low as 4% of the workers’ compensation costs for
other employees.

Research
shows that workers with a disability have higher rates of retention, better
attendance, and fewer occupational health and safety incidents than those
without a disability. In addition to this, many employers find they benefit
from greater diversity in their workforce not only from a reputational
(benefits) perspective, but also because of the diversity of views and
experiences they have to draw from when making business decisions.

Despite these benefits,
working-age people with a disability (10%) are twice as likely to be unemployed
as those without a disability (5%). This is despite the fact that in Australia,
it is unlawful for an employer to discriminate against a person on the basis of
their disability. But what does it mean to discriminate against a person with a
disability?

Before we go further, we should discuss the
definition of a (what is a disability?) for the purposes of the law.

The term is defined slightly differently
between jurisdictions – but in essence, it will generally have its ordinary
meaning, such as a total or partial loss of bodily functions, or a disorder,
illness or disease that affects a person’s thought processes, perception of
reality, emotions or judgement.

As an employer, it’s important to note that
a disability may not always be visible, for example, a mental illness or a
chronic illness, but it may include certain conditions people would not
otherwise expect, such as someone being HIV positive.

The definition of disability can include
manifestations of their disability as well, such as an employee experiencing
extreme nausea triggered by having to drive a train when they experience
Post-Traumatic Stress Disorder incurred from a train crash.

The definition also includes a current or
former disability. Depending on the law relevant to your location, the
definition may also include a disability that could exist in the future, or an
‘assumed’ disability. For example, where an employer assumes an employee has a
mental illness because they enthusiastically discuss ‘conspiracy theories.’

Many people talk discrimination, but not
everyone realises it has a distinct legal meaning, and that it can be
categorized into two forms: direct and indirect discrimination.

Direct discrimination occurs when a person,
or a group of people, is singled out for worse treatment compared to others in
similar circumstances, because they have a protected attribute such as having a
disability or impairment.

Indirect discrimination occurs when one
rule applies to all, but in fact disadvantages a person or group of people
because they are unable (or less able) to comply with the rule because they
have a disability or impairment.

Legislation at both a state and
Commonwealth level makes it unlawful for an employer to negatively discriminate
in either way, with some notable exceptions, such as where the discrimination
occurs for the benefit of people with a disability, or as we will discuss in
our next presentation, where an employee cannot perform essential duties of a
role, or accommodating an employee would pose too large a burden on an
employer.

One example of direct discrimination would
be where an employer dismisses an employee because of their disability.

For example, if a chef was diagnosed as HIV
positive, and they advised their employer, and the next day they were dismissed
because their employers were told by their insurance broker that their
insurance may be cancelled if they continued to employ the chef.

However, if the employers had done some
more research, they would have discovered that there was an extremely low risk
of the condition being passed on by the chef.

Another example of direct discrimination
would be where an applicant for a job discloses that they have lived with
depression, and the employer decides not to offer the person the role on this
basis.

On the more extreme end of the scale,
employers should also be aware that disability-related harassment in a place of
employment is unlawful under the federal Disability Discrimination Act.

Although the Act doesn’t define harassment,
but generally, it can be understood to occur when someone acts towards a person
in a way that makes a person feel intimidated, insulted, humiliated, or the
person is placed in a hostile environment.

For example, this could include insults or
humiliating jokes about someone’s disability.

Indirect discrimination can be a bit harder
to identify in practice.

One example would be where an employee has
Crohn’s disease which resulted in them needing to have fast access to a toilet
at a moment’s notice. If an employer insisted on rostering and requiring them
to work in locations without such easy access, this would constitute indirect
disability discrimination.

Another example where indirect disability
discrimination may occur could be in the recruitment process.

If an employer insisted that applicants
for a position must be able to pass a physical fitness test, because they
wanted healthy employees in their workplace – but it wasn’t really an essential
part of their role – then this could constitute indirect discrimination as it
could prevent people with disabilities from being hired.