Legal issues

Legal issues

Increase in disability discrimination claims

NEW figures released by the Human Rights and Equal Opportunity Commission show an increasing number of injured employees are making claims for disability discrimination.

Uncapped payouts and a relatively high success rate may explain the recent increase in claims under Federal discrimination law.

In the State system there is a cap of $40,000 on damages but its informality and accessibility can still make it an attractive option.

Employees in WA are usually able to apply under the Federal or State system.

Disability discrimination allegations against employers are most common when an employee with a disability or impairment is dismissed, passed over for promotion or given different duties that are perceived as a demotion.

The disability or impairment does not have to arise out of the person’s employment.

An example is provided by a Western Australian case where a prison officer suffering from a degenerative back disease had her employment terminated on the basis she could no longer physically restrain prisoners, an important part of the job.

Following her termination, she applied for a position at the prison as a laundry clerk but was not considered for this position because of her disability.

Although the HREOC accepted that termination was warranted in relation to the first job, it ruled that the ability to restrain prisoners was not a prerequisite of the second job.

The dismissed employee was awarded $38,000 in damages.

This case reveals an important but contentious aspect of discrimination law.

The law does not prohibit discrimination against a person whose disability prevents them from performing the inherent requirement of the job but, as the above case shows, employers must ensure the inherent requirements of the job have been properly identified.

A practical way of determining whether a requirement is inherent is to ask "would the position be essentially the same if the requirement was dispensed with?".

What does it mean?

Employers should consider potential unlawful discrimination issues in any decision that could impact upon an injured employee, from a minor change of duties to redeployment or termination.

Rod Collinson - 9429 7637

Michael Preston - 9429 7684