By Kerryn Tredwell
A recent case shows employers need to try harder when accommodating disabled employees – or they could face legal action.
The legal term all businesses should know is “reasonable adjustments”. Under equal opportunity legislation, employers are required to make reasonable adjustments for employees with a disability so they can continue to perform the genuine and reasonable requirements of their position.
A failure to make reasonable adjustments can be direct or indirect disability discrimination.
A recent decision by the Victorian Civil and Administrative Tribunal (VCAT) shows that business needs to take a broad view as to what adjustments can be made. In particular, employers should consider whether moving the employee to another department to perform their position would provide the necessary adjustments.
The applicant was employed as a customer service officer (CSO) in the call centre department of a not-for-profit organisation. She suffered neck and shoulder injuries due to alleged overuse of the telephone for which she lodged a workers’ compensation claim, which was accepted.
After an extended period working modified duties, the employer terminated her employment. The employer decided the applicant could not perform the inherent requirements of her pre-injury position and that no reasonable adjustments could be made.
However, the applicant claimed she had been discriminated against on grounds of disability.
The Tribunal found the employer had failed to make reasonable adjustments. It found the employer focused too narrowly on making reasonable adjustments to the applicant’s pre-injury CSO position in the call centre and that the employer failed to consider whether the applicant could perform an adjusted CSO role in another department serviced by CSOs (in which she had worked in the past), which involved less telephone use.
The Tribunal held that:
The Tribunal noted that when considering whether adjustments are reasonable, an employer is entitled to consider the impact on efficiency and productivity and customer service. Employers are not required to create a new job for a disabled employee but may need to move staff around within a position to allow the disabled employee to undertake a high proportion of other tasks.
The applicant was awarded $3,325 in damages for economic loss and $10,000 for hurt and distress. Damages could have been much higher had the applicant not found alternative employment a short time after her dismissal.
There is no “one size fits all”. Some employees with a disability will not need any adjustments.
Common examples of reasonable adjustments include providing flexible working hours or more regular breaks for people suffering from chronic pain or fatigue, or providing equipment or tools to assist, such as a screen reading software for employees who are visually impaired.
The particular circumstances of the employee’s role and their disability need to be considered. Consulting with the employee to find out their views is an important part of determining what adjustments might be reasonable, yet is often overlooked by employers.
Expert advice is recommended, and may include medical advice, and professional advice obtained from consultants with expertise in adjustments to accommodate disabilities.
An employer will generally not be obliged to make an adjustment if it would result in an “unjustifiable hardship” or would otherwise be unreasonable. The employer needs to weigh up the need for, and benefits of, the adjustment against the cost or disruption to the business of making it.
A common mistake made by employers is ignoring the obligation to make reasonable adjustments in cases of excessive sickness absences. While employers are entitled to manage high sickness absence, they need to be mindful of the underlying cause for the absences. If the cause is a disability, simply treating the absences as a disciplinary matter could ignore the legal obligation to make reasonable adjustments (for example, by allowing additional time off).
Another common mistake is not taking a broad or sufficiently flexible view of what adjustments are reasonable to accommodate the disability. Some employers worry about fairness to other employees, misunderstanding that the rationale behind reasonable adjustments is to create fairness for disabled employees. Concepts of adjusting work hours or providing extra breaks for employees with a disability should not be avoided for fear that other employees in the workplace might consider it unfair.
Advice about what constitutes a reasonable adjustment in an individual case will support the employer’s position, helping avoid costly and drawn-out legal actions.
Kerryn Tredwell is a partner at Hall & Wilcox Lawyers.
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