Disabilities at work

The Disability Discrimination Act (DDA) requires employers to make reasonable adjustments to the workplace so that employees with disabilities can perform their jobs. These adjustments are called "workplace adjustments". 

When is an employee considered to have a disability?

As a starting point, it is important to clarify the legal definition of disability, in line with the best practice used by adjudicating bodies to determine whether or not a person meets that definition. This is often used to form the basis of each organisation’s own definition.

The definition of ‘disability’ used for employment-related purposes in the Australian Public Service Commission is based on the Australian Bureau of Statistics’ Survey of Disability, Ageing and Carers.

Persons are considered to have a disability if they have a limitation, restriction or impairment, which has lasted, or is likely to last, for at least six months and restricts everyday activities. This includes:

Sensory

Loss of sight (not corrected by glasses or contact lenses), loss of hearing where communication is restricted, or an aid to assist with, or substitute for, hearing is used and speech difficulties.

Intellectual

Difficulty learning or understanding things.

Physical

Shortness of breath or breathing difficulties that restrict everyday activities, blackouts, seizures or loss of consciousness, chronic or recurrent pain or discomfort that restricts everyday activities, incomplete use of arms or fingers, difficulty gripping or holding things, incomplete use of feet or legs, restriction in physical activities or in doing physical work, disfigurement or deformity.

Psychosocial

Nervous or emotional condition that restricts everyday activities, mental illness or condition requiring help or supervision, memory problems or periods of confusion that restrict everyday activities, social or behavioural difficulties that restrict everyday activities.

Head injury, stroke or acquired brain injury

Head injury, stroke or other acquired brain injury, with long-term effects that restrict everyday activities.

Other

Receiving treatment or medication for any other long-term conditions or ailments and still restricted in everyday activities, any other long-term conditions resulting in a restriction in everyday activities.

Employer responsibility

It is the duty of the employer to make necessary adjustments to enable the disabled person to carry out and succeed in their role. The key is to ensure that the employee isn’t at a disadvantage in terms of access and resources as a result of their disability.

An example of this would be to provide specialist assistive computer equipment in order to enable a person who is deaf to communicate with those who are on the telephone or providing an enlarged computer screen.

Another reasonable adjustment would be to fit a ramp to an office building to enable a member of staff who uses a wheelchair to access the building without issue.

Employers are not, however, required to make workplace changes if it would cause major difficulties or unreasonable costs. This is called ‘unjustifiable hardship’.

Employers would need to show how making those changes would cause such hardship. Many adjustments involve little or no cost, and the Australian Government’s Workplace Modifications Scheme can assist where there are costs in modifying the workplace or purchasing equipment for eligible employees with disability.

Recruiting disabled employees

When recruiting for a new position within your organisation, it is important to ask whether the candidate considers themselves to have a disability; although this should be asked for the sole purpose of assessing whether any adjustments are required to enable them to partake in the recruitment process.

Your recruitment process should be designed so that you are able to make a shortlisting decision without knowing whether the candidate has a disability.

This is to prevent the candidate from being discriminated against due to their disability, and to protect the recruiting manager from being accused of not shortlisting due to the disability of the candidate. Once the shortlisting decision has been made, only then should you explore the issue topic of disability with the candidates.

Disability in the workplace

As stated, there is a legal requirement for the employer to make reasonable adjustments in order to allow disabled employees to attend work and perform the duties of their role. However, the provision of these adjustments is also based on economies of scale.

What one employer can reasonably accommodate can differ to what another can accommodate. For example, a large organisation with thousands of employees would be expected by law to accommodate a higher level of adjustments than a much smaller business with significantly fewer employees.

If a business is unable to make necessary adjustments, their reasons for this need to be absolutely clear. All businesses should be able to demonstrate that they have started from the basis that you must accommodate the adjustments, and then work back from there.

Managing absence

Absence levels for those who have longstanding conditions can be higher than for colleagues who do not have such a disability. For example, an employee who suffers with ME may suffer from excessive levels of fatigue which prevent them from attending work at the same level as another colleague.

As an employer, you must have absence management arrangements for those who have a disability. This should be documented in your long-term sickness procedure to ensure that disabled employees are treated with consideration.

If you are looking for more information on the type of disability and what impact that may have on their ability to attend work, an occupational health provider will be able to provide you with this information. One example of this would be reduced immunity for an individual who has diabetes, so chest infections and abscesses may be more likely and may take the individual longer to overcome.

There may be occasions whereby employees with a disability are absent for a prolonged period of time that their absence becomes unsustainable for the employer.

On these occasions, medical capability should be explored and the employer must be able to demonstrate that they have allowed leniency with absence for the employee with a disability and that they have explored alternative options to allow the disabled employee to remain in work (e.g. reducing working hours, working days or flexible working).

Under the National Employment Standards, employees with a disability can request flexible working arrangements in certain circumstances.

Examples of flexible working arrangements include changes to:

• hours of work – for example, changes to start and finish times

• patterns of work – for example, split shifts or job sharing

• locations of work – for example, working from home.

There are rules about how employees can make these requests and how employers must respond to them. For more information, see Flexible working arrangements.

Dismissal

Employers must be able to demonstrate that any conscious adjustments made have had little to no impact on the employee’s attendance levels and explain why the business cannot cope with the current level of absence.

In dismissing an employee due to medical capability, you will need to demonstrate all of the above, and also that there is no foreseeable improvement in high absence levels; otherwise the dismissal could be considered to be unfair and may result in tribunal.

One common question an investigatory representative is likely to ask is that, if a business can accommodate an employee being unable to work for 12 months due to maternity leave, why can the business not accommodate this level of absence due to disability?

It may be due to the excessive costs associated with covering the absence whilst paying occupational sick pay, or it may be because the high levels of absence have been an issue for a prolonged period with no signs of improving.

Keeping the dialogue open

Regardless of the size of the organisation, employers must ensure that they maintain a regular dialogue with the individual about their requirements throughout their employment. In doing this, the business develops a culture whereby the line manager and employee can have confident and assured conversations whilst demonstrating that the business has explored any necessary adjustments to sufficiently accommodate all employees.

It is important to note that some employees may feel uncomfortable having adjustments made specifically for them and may be embarrassed as a result. Always look to maintain confidentiality where appropriate and ensure that a sensitive approach is demonstrated to all members of staff.

BrightHR can help you stay compliant and fair

In every aspect of the employment relationship, it’s important that you follow due process, and applicable employment laws, and act as fairly as possible. This protects you, your employees, and your business.

While this seems straightforward enough, the employment relations landscape in Australia is anything but straightforward. This means that employers like you have your work cut out to ensure that you’re staying compliant with the latest rules and obligations.

With several, and sometimes high profile, unfair dismissal cases coming to light, it’s important for businesses to remain cautious and seek expert support.   

That’s where BrightHR can support you with an extensive library of HR document templates as well a 24/7 phone advice line connecting you directly to a team of employment relations advisers.

Book a free product demo of our HR software or give us a call on 1 300 029 198 today.