Working with Disabilities
Almost one in five Australians reported living with a disability (18.3% or 4.3 million people) (ABS, October 2016). There may be persons with disabilities working in your workplace or you may yourself have a disability.
The Union is here to assist those with disabilities in the workplace to ensure they are given a fair go.
Here is some information to help you understand your rights surrounding disabilities in the workplace.
- total or partial loss of body function or a body part
- the presence of organisms (such as HIV or Hepatitis C) that may cause disease or disability, malformation or disfigurement of the body
- mental or psychological diseases or disorders
- conditions or disorders that may result in a person learning more slowly.
It is against the law to discriminate against anyone in the workplace because they have, or are assumed to have a disability. The law protects people who have had a disability in the past and those that may have a disability in the future (for example, a genetic predisposition to a disability).
Employees are protected from discrimination at all stages of employment including recruitment, workplace terms, and conditions and dismissal.
Some people with disabilities can face barriers at work because of how their work situation is organised. In many cases, these barriers can be removed by changing some feature of the workplace environment.
Making these changes is commonly referred to as ‘reasonable adjustment’.
Under state and Commonwealth legislation, employers must make reasonable adjustments for a person offered employment, or to an existing employee with a disability, to enable them to perform the genuine and reasonable requirements of the job. Failure to do so may amount to discrimination.
Adjustments should respond to the particular needs or concerns of the worker. Examples of adjustments include making changes to work premises, making adjustments to work schedules, modifying equipment or providing training.
However, employers are not required to make adjustments to their workplace if they can prove that an adjustment would be too expensive, difficult or time-consuming or cause some other hardship to the organisation. This is called ‘unjustifiable hardship’.
In some cases, an employer can lawfully decide not to make requested adjustments, if:
- the adjustments needed are not, in fact, reasonable (with reference to relevant circumstances), or
- the person with the disability could not perform the genuine and reasonable requirements of the job even if the adjustments were made.
Are there any exceptions to the law?
The respective state and federal legislation provide some general and specific exceptions. This means that discrimination may not be against the law in particular circumstances, including:
To comply with an order of a court or tribunal, or is authorised by legislation.
- For various religious reasons. Religious bodies and religious schools can discriminate on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity where the discrimination conforms to the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of people who follow the religion. However, religious bodies and religious schools cannot discriminate on the grounds of race, disability, age, physical features, industrial or employment activity, carer status, political belief or activity, pregnancy, breastfeeding or on the basis of a personal association with a person with any protected characteristic.
- For health & safety. For example, discrimination because of disability, pregnancy or physical features will not be against the law where it is necessary to protect the health and safety of any person, including the person being discriminated against. This exception also applies to discrimination because of disability or physical features where it is necessary to protect property.
- For the purpose of providing special assistance. For example, a person can also discriminate by offering special services, benefits or facilities to meet the special needs of people with a particular personal characteristic. For example, a support group for single fathers can limit participation in the group to single fathers, or a holiday tour company can offer services for 18– 30-year-olds and restrict the participation of younger or older people.
- Specific exceptions. For example, schools and other educational institutions may run programs for students of a particular sex, race, religious belief or age group, or for students with a disability. The exception allows education providers to target their programs to the needs of particular groups. Students may be ineligible for such programs if they do not have the relevant personal characteristic. Some exceptions also work to identify and protect conduct that benefits disadvantaged or vulnerable groups.
Employees who feel that they have been discriminated against on the basis of disability can make a complaint to the Anti-Discrimination Board of NSW or the Human Rights Commission.
Employees can also make a complaint if they think that their employer unreasonably refused to accommodate their disability where they have made:
- a reasonable request to their employer
- for a change in working arrangements, and
- this request has been denied.
Should you have any questions or concerns surrounding disabilities in the workplace, or any other employment-related matter, please do not hesitate to contact us on 1300 SDA HELP (1300 732 4357) or by email email@example.com