Employing People with a Disability | Part 2

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

Intro

Hi there, and welcome to the second 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, and we represent and support employers…

Group 61@2x

Duration: 13:48 min

Hi there, and welcome to the second 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, and we represent and support employers in the
retail and quick service (fast food) industries with training and advice on a number of employment-related matters,
including employing people with disabilities.
In our last presentation, we discussed that we will use person-first language throughout. For example, ‘person or
people with a disability. I encourage you to watch that presentation before starting this one, as we discuss some key
concepts in relation to disability discrimination, and how to make your recruitment process inclusive of people with
a disability.

We’ve broken down the agenda for today into a few main areas.
First, we will discuss the requirement to make changes and accommodate an employee with a disability, and then
we will examine some of the exceptions to disability discrimination, such as where an change or adjustment would
subject an employer to unjustifiable hardship, or where an employee cannot perform the essential duties or
inherent requirements of a role.

Before we get into some of these exceptions, it bears repeating some of the benefits employers can discover where
they employ people with disabilities.
Employment costs for people with a disability can be as low as 13% less of the employment costs for other
employees. Workers’ compensation costs for people with disability are 4% less of the workers’ compensation costs
for other employees.
Research has shown that workers with 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, both from a reputational perspective, but also because of the
diversity of views and experiences they have to draw from when making business decisions.
Above all else, in Australia, it is unlawful for an employer to discriminate against a person on the basis of their
disability, so an employer who makes the effort to create a workplace that is supportive of employees with a
disability will be better placed to avoid costly legal proceedings.

In federal and state anti-discrimination legislation, there is a requirement for an employer to make changes or
accommodate an employee with a disability, also known as reasonable adjustments, to allow them to perform their
role.
Where an employer fails to make reasonable adjustments and this results in an employee being treated less
favourably or being disadvantaged relative to other employees without that disability, this may amount to
discrimination.
For example, a common reasonable adjustment often found in offices is a height-adjustable or standing desk for
employees who may not be able to sit for long periods of time due to muscular or skeletal conditions.

Importantly, an adjustment will not be reasonable where making the adjustment would be too burdensome for an
employer, also known as an unjustifiable hardship.
Whether an adjustment will be reasonable or prove to be an unjustifiable hardship will depend on a number of
factors and should be determined on a case-by-case basis.
Factors that will determine whether an adjustment would be reasonable include: The effectiveness of the
adjustment in assisting the employee with disability to perform their job; The practicality of the adjustment; The
extent of any disruption caused to the business operations; the number of people who would benefit or be
disadvantaged by the adjustment; The financial or other costs of the adjustment; The extent of the organisation’s
financial and other resources; The availability of financial or other assistance to help make the adjustment (e.g. the
Employment Assistance Fund); and The nature of business activities and size of the organisation.
For example, if an employee required an adjustment whereby they received constant and intensive one-on-one
supervision whilst in the workplace in order to perform their role, this would most likely be found to amount to an
unjustifiable hardship on the employer, and so if an employer refused this adjustment it would likely be found not to
amount to discrimination.

This is why when hiring a new employee, you should ask if they have any disability, impairment or condition that
would require you to make an adjustment so you can consider the reasonableness of this adjustment.
In the case of current employees, communicate with your employees and encourage them to keep you informed of
any such adjustments they may require as their circumstances change over the course of their employment with
you.
If you are not confident in assessing the reasonableness of a requested adjustment, require financial assistance, or
are not sure what an appropriate adjustment may be for your workplace, there is free assistance available through
an Australian Government initiative called JobAccess.
JobAccess provides funding through something called the Employment Assistance Fund (EAF) to cover the costs of
making workplace changes. This can include buying equipment, modifications or accessing services for people with a
disability.
The EAF is available to eligible people with a disability who are about to start a job or currently working. It is also
available to people with a disability who need Auslan assistance or special work equipment to look for and prepare
for a job.
The EAF could help to buy work-related modifications and services like: The cost of making adjustments to your
physical workplace; Modifications to work vehicles; Special equipment for the workplace; Information and
communication devices; Auslan interpreting services; Specialist services for employees with specific learning
disorders and mental health conditions; Disability awareness training for the workplace; Mental health awareness
training.
Free workplace assessments are available through the Fund to help work out solutions to make your workplace
more flexible and accessible to employees with disability.

In some cases, an employee’s disability may mean that they will benefit from less conventional working
arrangements, and the relevant reasonable adjustment may be a change in their working arrangements.
For example, an employee who is experiencing fatigue due to their depression may need a change of hours to when
they are at their most alert, or someone who suffers from chronic pain may benefit from having the option to work
from home.

In addition to the requirement to make reasonable adjustments, under the Fair Work Act, an employee has a right to
request a change in their working arrangements if they are experiencing certain circumstances, such as caring for a
child, being aged 55 years of older, or having a disability.
In order to be entitled to make the request, a full-time or part-time employee must have completed 12 months of
continuous service with their employer before being entitled. If an employee is casual, they must have been
employed on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing
employment.
If they are entitled to make the request, they must then make it in writing, setting out the details of the change they
are requesting and their reasons for the change.
Once an employer has received a request, they have 21 days to give a written response as to whether the request is
refused or granted. Not dissimilar to the unjustifiable hardship, the employer can only refuse the request from an
employee on ‘reasonable business grounds.’

Determining whether a request is reasonable is similar to the earlier question of whether an adjustment is
reasonable, or an unjustifiable hardship.
Reasonable business grounds could include things like the flexible working arrangement being too costly, or the
change being likely to result in a significant loss in efficiency.
While it is not explicitly stated in the Act, where an employee makes such a request, and at first glance it would
appear to pose an unreasonable financial or administrative burden on the company, an employer may not wish to
immediately refuse it on these grounds. Rather, it may be appropriate to open up discussions with the employee
about their request and negotiate an alternative arrangement to the one proposed by the employee.
If the employee is unwilling to compromise, then the employer will still have the option to refuse the proposed
arrangement if it is not feasible on business grounds.
Where a disability or impairment may be temporary, an employer may also wish to propose that the arrangement be
temporary and agree to a review or end date to the arrangement.

A further exception to discrimination exists where there are essential duties or requirements of the role that a
person with a particular disability cannot meet, even if reasonable adjustments were made.
An inherent requirement is an essential element of an employee’s particular role and will not merely be the physical
activities involved, but also the activities of the employment. For example, an inherent requirement of working in a
fast food restaurant may be being able to work in a high pressure, fast-paced environment, and so a person with a
panic disorder may not be able to fulfil this requirement.
However, an employer should tread carefully. If an employer intends to rely upon this exception, but the employee
can in fact perform the inherent requirements of the role, then the employer will have discriminated against that
person.

For example, an employer attempted to rely on the inherent requirement exception where they had made the
decision not to proceed with hiring an applicant with borderline personality disorder.
As the candidate had driven a bus without incident since his diagnosis, he said he had no condition affecting his
ability to perform the inherent requirements of a role when asked in a pre-employment form. When a routine
medical assessment was performed, it revealed his borderline personality disorder. The employer opted not to hire
him as they believed this was dishonest.

During the medical assessment, it was not determined that he was unfit to perform the inherent requirements,
rather it had determined he was temporarily unfit pending investigation by a psychiatrist.
If they had proceeded with a psychiatric assessment that had confirmed the applicant was not fit to perform the
inherent requirements, the employer may have been successful in claiming this exception.
However, because the employer did not actually make sure the employee could not perform the inherent
requirements, and instead discontinued his recruitment, they were found to have discriminated against him.

In practice, relying upon the inherent or genuine requirement exception when deciding on an employee’s
employment can expose an employer to a number of potential claims.
Accordingly, we recommend that employers take the time to seriously consider what the inherent requirements are
of each position or role at their workplace.
While this may sometimes look like a position description, there may sometimes be inherent requirements which are
not explicitly a duty or task of the role, but rather are an assumed part of the job – such as the ability to be standing
for extended periods in a retail store.
For example, for a role as an electrician, a person may be required to see a full range of colour, as colour is a key part
of how the work is safely performed, and so an employer would be able to reject the application of a person with
colour-blindness on the basis that they could not perform the inherent requirements of the role.
To allow a potential employee to identify if they can satisfy the inherent requirements, or whether they require
reasonable adjustments, it is recommended that you provide them with a copy of the position description and ask
them to identify if they have any conditions or disabilities which may impact the ability to perform the inherent
requirements of the role.
Sometimes you may not be clear on what an inherent requirement is until you have an employee with a condition
that prevents them from doing it, so if this arises, you should attempt to investigate what reasonable adjustments
may be required.

If no reasonable adjustment can be made to assist a person with a disability to perform the inherent requirement of
a role, an employer may need to dismiss, redeploy the employee, or hire another employee for the role.
Before embarking upon such a decision, it is recommended that an employer make every effort to satisfy themselves
that no reasonable adjustment could be made to allow the person to perform the inherent requirements. This may
involve undertaking further research, contacting the person’s medical practitioners, or referring them for a medical
assessment to confirm whether they can perform the inherent requirements of the role.
Even after an employer has satisfied themselves that the employee cannot perform the inherent requirements of
the role, it is recommended that they put this to the employee and ask the employee to respond and contest this if
they are able.
Only then should an employer consider not offering a job to a person with a disability or dismissing or redeploying an
employee.

As discussed, there are numerous benefits to an employer and their business where they have employees with a
disability, not just avoiding unnecessary legal risks, but also improving productivity and reducing business costs.
Unfortunately, some employers can lose sight of these benefits and decide that employing someone with a disability
is just too much work. But as you will have heard in this presentation, employers should tread carefully where they
wish to rely upon one of the exceptions to disability discrimination at law. If an employer isn’t careful and doesn’t
take the time to satisfy themselves that an exception is indeed relevant, then they may be facing costly legal
proceedings.
If any of the information I’ve discussed today has given you pause for thought, and you need to talk about it, please
don’t hesitate to contact the National Retail Association on 1800 445 522 and our experienced Workplace Relations
Advisors can talk you through your legal obligations and how you can welcome employees with disabilities into your
business.