Chivers v State of Queensland (Queensland Health)  QCA 141
The Queensland Court of Appeal recently handed down a decision which helps to clarify employers' responsibilities in considering whether a particular requirement of a position is a genuine occupational requirement, or, whether adjustments should be made to meet the needs of an employee with an impairment or disability. While the decision related to anti-discrimination legislation in Queensland, it is likely to have significance in relation to the interpretation of the federal and other State and Territory disability discrimination laws in Australia.
In this Alert, Partner Andrew Tobin, Solicitor Claire Tuffield, and Trainee Solicitor and Employee Relations Advisor Adele Garnett summarise the decision and the possible impact on disability discrimination laws in Australia.
- An employer may be exempt from changing an employee's job to suit the employee's particular impairment or disability if the employer's particular requirement is a "genuine occupational requirement" or an "inherent requirement" of the work.
- In deciding what a genuine occupational requirement is, employers should consider:
- the tasks and skills of a position;
- the circumstances within which those tasks and skills are to be performed; and
- the function that the employee performs "as part of the employer's undertaking". For example, in this case, a hospital operating 24/7 will reasonably require a registered nurse to be able to work all shifts.
- Establishing a genuine occupational requirement under anti-discrimination law can be a difficult threshold to meet. Employers need to carefully consider whether particular job requirements can be adapted so that they meet both the employee's and the employer's needs.
- An employer can make limited or temporary exceptions to a genuine occupational requirement, "in order to administer humanely a system that is essential to particular employment", without compromising the "genuine" nature of an alleged "occupational requirement". This might be, for example, to accommodate short term temporary illness or injury, or to accommodate a worker returning to work from maternity leave.
While studying to be a nurse, Ms Chivers had a horse riding accident and sustained a head injury. Ms Chivers recovered sufficiently to finish her studies and commence as a "Beginning Nurse" at Ipswich Hospital (Hospital), however, she continued to suffer extreme headaches and nausea. These symptoms were exacerbated when she worked night shifts. Her doctor's opinion was that she was incapable of performing night shifts for an uncertain period of time.
The Hospital's position was that they were unable to permanently accommodate Ms Chivers' medical condition. There were very few areas within the Hospital where registered nurses solely worked day shift and those positions required more experienced staff. There were also concerns about the burden on other staff who would be required to pick up the extra night shifts, which the Hospital felt would lead to staff resentment.
On this basis, Ms Chivers' probationary period was extended while her medical condition was investigated. Eventually, however, she resigned to take up alternative day shift employment.
It was not contested that Ms Chivers had an "impairment" for the purposes of the Queensland Anti-Discrimination Act 1991 (Act) ie, her medical condition. (The corresponding federal legislation – the Disability Discrimination Act 1992 (Cth) – uses the term "disability". For most practical purposes the terms "impairment" and "disability" are interchangeable).
However, the Hospital argued that it was permissible for them to discriminate on the basis of Ms Chivers' impairment under the Act, because it was a "genuine occupational requirement" that registered nurses be able to work night shifts.
The Hospital provided evidence that there were only five out of 3,358 registered nurses who, by ad hoc arrangements, were working in the relevant health district other than on a full-time 24 hour continuous shift basis. None of these were permanent arrangements.
At first instance in the Queensland Civil and Administrative Tribunal (QCAT), Ms Chivers was successful in establishing that the Hospital's treatment of her amounted to unlawful indirect discrimination and that the genuine occupational requirement exemption did not apply. However, on appeal, Queensland Health successfully argued that working night shifts was a genuine occupational requirement of the position. Ms Chivers appealed to the Queensland Court of Appeal.
The Court of Appeal dismissed Ms Chivers' appeal, confirming that it is a genuine occupational requirement for a registered nurse to be able to work night shifts.
The Court stated that in deciding whether a particular requirement was a genuine occupational requirement, it was essential to consider the function which the employee performs as part of the employer's undertaking, and not just the employee's physical ability to carry out the required tasks. This means considering the work environment where the employee performs the tasks, which in this case was a hospital providing nursing care 24/7.
The Court also confirmed that there was no requirement to create a "special position" for an employee who has a recognised impairment (or disability).
The Court noted that temporary and limited exceptions can be made to a genuine occupational requirement in order to administer a system "humanely" – for example, to accommodate a temporary medical condition or while an employee is rehabilitating. However in Ms Chivers' case, there was no evidence of when, if at all, she would ever be able to work night shift. The Hospital could not be required to accommodate her circumstances indefinitely. The fact that it had done so temporarily did not detract from the fact that Hospital's requirement for Ms Chivers to work night shifts was always a "genuine occupational requirement" of her position.
The Implications for Employers
While the decision relates specifically to Queensland disability discrimination law, it is likely to have significance in relation to the application of the federal and other State and Territory disability discrimination laws. In one way or another, these all recognise – as an exception to the prohibition of discrimination in the work area on the ground of "disability" or "impairment" – "inherent" or "reasonable" requirements of particular work.
How do employers know whether job requirements will meet the threshold of being a "genuine" or "reasonable" occupational requirement or "inherent requirement" of particular work?
This can be difficult to determine as it must be considered on a case by case basis – and the onus is on the employer to prove it.
Sometimes, policies that employers have relied upon for years have been held not to impose truly genuine occupational requirements. Examples include the requirement that fire fighters and police officers meet certain eyesight standards (see for example: Seaton v Queensland Fire Service; Flannery v O'Sullivan)1.
So what should employers consider in deciding whether a particular requirement of their employees is – or is not – a "genuine" occupational requirement?
Regrettably, the legislation does not provide a specific definition or list facts or circumstances that should be taken into account. However, the cases indicate that the following should be considered by employers:
- Is it an essential element of the job?
- What are the terms of the employment contract?
- What are the relevant policies of the employer, for example, regarding reasonable adjustments?
- What are the social, legal and economic environments of the employment?
- What is the role that the employee performs as part of the employer's "undertaking" (ie beyond the physical capacity to perform)?
- Does performance of the job involve any risks to the health and safety of others?
Importantly, the next step for an employer is to consider whether the particular employee can perform the genuine occupational requirement – consider the employee's skills, abilities and performance (particularly where they have been working in the position), and the possibility of reasonable adjustments to the workplace which might assist the employee.
Try and think "outside of the box" for possible ways around the requirement – an appreciative and loyal employee can provide significant benefits to a business, not to mention the benefit of avoiding litigation.
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