The spectre of claims under anti-discrimination legislation (and
the related media) appears to drive nervousness in some businesses.
This is especially the case when dealing with longer term ill or
injured employees. In this blog we make two suggestions about how
to handle this issue in the context of non-work related illness and
Be open and transparent with employees when determining what
their illness or injury means for their ability to work, and
In deciding whether a business is required to make
'reasonable adjustments' in the workplace to enable a
disabled worked to continue working, the inherent requirements of
the role must be able to be identified with ease and
These suggestions are discussed in more detail below.
Employee illness or injury – talk don't
When an employee suffers a non-work related illness or injury
there is often reluctance to ask exactly what the illness or injury
means in terms of the role at work. This may be due to concerns
about privacy, general embarrassment about discussing medical
issues or a lack of understanding of discrimination law. None of
these is, of itself, a reason not to have a direct conversation
with an employee or their treating physician (with the
employee's agreement), about the exact nature of the
limitations on the employee's abilities arising from the
illness or injury. The focus of these discussions should be on the
consequences of the disability in terms of the workplace and the
employee's work responsibilities.
For example, in a recent decision of the Federal Circuit Court
of Australia it was found that the employer unlawfully
discriminated against an employee with Crohn's disease
including because the employer decided the employee was permanently
unable to perform her 'pre-illness' role based on its
misunderstanding of the medical assessment of the employee. The
employer unilaterally determined that the employee could not
perform a particular role (that the employee had been performing
for almost 6 months). What the employer should have done was
consult the employee (and her doctor) about her illness and what it
meant in terms of her capacity to work rather than make assumptions
about the employee's capability.
Return to work plans – the PD is key!
A related issue arises from the 'inherent requirements'
exception to the prohibition on disability discrimination.
Generally, discrimination in employment on the basis of an
employee's disability will not be unlawful if the employee
would be unable to carry out the 'inherent requirements' of
their role even if the employer made reasonable adjustments for the
In order to rely on this exception the inherent requirements of
the particular role must be identified and considered. Inherent
requirements are the non-negotiable elements of the employee's
contracted role. Ideally every role in an organisation will have a
specific position description which includes a list of specific
essential requirements of the role, including location of work
– preferably under the heading 'Inherent
Requirements'! In the absence of such a position description,
consultation with the particular employee (and potentially
assessment against others in the same or similar roles) will
usually be required to determine what the inherent requirements of
the role are. Further, in determining what, if any, reasonable
adjustments may be made to a role, consultation with the particular
employee will also be required.
Whether adjustments are reasonable will be specific to the
particular employee and may differ even as between employees with
the same illness or injury where the illness or injury manifests
differently between the employees in terms of the ultimate
This process will be separate from that for establishing any
necessary gradual and short term return to work plan.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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