Disability and your rights at work: What you need to know
If you’re among the one in six Australians with a disability, your employment rights are protected by law.
The Commonwealth Disability Discrimination Act provides a broad definition of disability, which includes physical, intellectual, psychiatric, sensory, neurological and learning disabilities.
Any of these disabilities may be caused by accident, trauma, genetics or disease. They may be temporary or permanent, visible or invisible, but they are all protected from discrimination.
We’ve asked an employment lawyer for insights into equal opportunity and the reasonable adjustments employers may need to make to ensure your rights are protected.
What is disability discrimination?
Andrew Jewell, Principal, Jewell Hancock Employment Lawyers explains that the primary source of protections for people with disabilities in Australia is the Disability Discrimination Act.
“There are also protections for employees with disabilities in the Fair Work Act 2009 and state anti-discrimination legislation,” he says.
Disability discrimination happens when people with a disability are treated less fairly than those without a disability.
Discrimination may be direct or indirect. In an employment context, direct discrimination might include:
- Refusing or failing to employ a person because of their disability, even though it has no impact on their ability to meet the inherent requirements of the job
- Giving an employee less favourable terms of employment, limiting access to training, or failing to consider them for promotion because of their disability
- Firing an employee because of their disability
- Causing an employee to retire or resign because of their disability
Indirect discrimination happens when employers create conditions, standards or practices that seem to treat everyone fairly, but actually disadvantage people because of their disability.
For example, if an employer requires a Deaf employee to attend meetings without an Auslan interpreter, this could be indirect discrimination, as they may have difficulty participating in the meeting.
Jewell says that while disadvantageous treatment of employees with disability is generally unlawful, there are some exceptions.
“The most obvious example is where an employee’s disability prevents them from performing the inherent requirements of a role,” he says.
“For example, if an employee develops a disability that, on a permanent basis, means they cannot perform their role, a dismissal will not be considered illegal, essentially because the employee had no other option.”
What are ‘reasonable adjustments’?
If you’re the best person for the job, your employer must make workplace changes or ‘reasonable adjustments’ if you need them to perform the inherent requirements of the job.
Reasonable adjustments may include adjusting a workstation to make it accessible, modifying equipment or adding more flexibility to work patterns.
Jewell says employers must make reasonable adjustments, unless they can prove that the adjustment would cause major difficulties or unreasonable costs. In the law, this is called ‘unjustifiable hardship’.
“Unfortunately, what is considered reasonable is very dependent on the situation, such as the adjustments required, the cost and the size of the employer,” says Jewell.
Do you have to disclose a disability?
If you have a disability, you are not obliged to disclose it to an employer unless reasonable adjustments are required to make the workplace safe for you. And Jewell says there are only certain circumstances where an employer can legally ask about your disability.
“Employers can also only ask about a candidate’s disability if there is a need to make adjustments or if the disability would prevent the employee from performing the inherent requirements of the role,” he says.
For example, if an employer needs to modify equipment or change work patterns, they may need to ask you some questions to ensure that they are providing a safe and productive environment.
Where can you go for support?
If you feel you’ve been discriminated against because of a disability or reasonable adjustment request, you can seek help from the Australian Human Rights Commission or your state-based equivalent.
“If an employee feels they have been dismissed due to a disability, they can commence proceedings in the Fair Work Commission,” adds Jewell.
There are also other sources of support, such as the Australian Government’s Employment Assistance Fund (EAF). It’s part of the JobAccess program and provides financial help to eligible people with disability who are about to start a job, are self-employed or who are currently working. The funds may be used to buy work related modifications, equipment, Auslan services and workplace assistance and support services. In most cases, you’ll need to let your employer know that you are applying for the EAF, as JobAccess may need to contact them to verify information in your application.
A person with a disability has a right to the same employment opportunities as a person without a disability. If you feel that you’ve been discriminated against, your rights are protected by the law.
Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.
