Willing and able: disability in the workplace

Disability in the workplace is more common than you may think. According to the Australian Bureau of Statistics, more than one million working-age people with a disability were in paid employment in 2012 — that is, 8.8% of the total Australian workforce.

What is a disability?

Disability comes in many different forms and degrees of severity, and can include mental, intellectual and physical disability

The Disability Discrimination Act defines disability as:

  • total or partial loss of the person’s bodily or mental functions
  • total or partial loss of a part of the body
  • the presence in the body of organisms causing disease or illness
  • the malfunction, malformation or disfigurement of a part of the body
  • a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction
  • a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement, or that results in disturbed behaviour.

There’s a perception among employers that older employees are more prone to injury. As our workforce ages — and people are expected to work for longer — it’s important that employees are aware of their rights and employers of their responsibilities.

Rights and responsibilities

Under the Disability Discrimination Act, employers cannot discriminate against an employee, or prospective employee, on the basis of that person’s disability. These laws are intended to ensure that Australians of working age are readily able to participate in the workforce.

The federal Disability Discrimination Act (and some state laws) obliges employers to make ‘reasonable adjustments’ to enable an employee with a disability to perform their duties.

Reasonable adjustments

An employee with a disability has the right to ask their employer for modifications to their workplace or situation. If these adjustments are considered ‘reasonable’, the employer is obligated to implement them.

For example, to provide for an employee with a disability, an employer might allow:

  • a change to duties or tasks
  • flexible working hours
  • regular breaks
  • workstation adjustments
  • modifications to work instructions or reference manuals
  • installation of ramps or other equipment.

What’s considered ‘reasonable’?

A number of factors are taken into account when determining whether or not an adjustment is ‘reasonable’. They include:

  • the employee’s circumstances, including the nature of their disability
  • the nature of the employee’s role or the role being offered
  • the nature of the required adjustment
  • the financial circumstances of the employer
  • the size and nature of the workplace and the employer’s business
  • the effect of making the adjustment, including financial, on the employer
  • the number of people who would benefit from or be disadvantaged by making the adjustment
  • the impact on efficiency and productivity
  • the consequences for the employer of making the adjustment
  • the consequences for the employee of not making the adjustment.

Be aware

When it comes to disability in the workplace, employers are often aware of the Fair Work Act’s stipulation that an employee must be able to perform the inherent requirements of the job. This is true, but not the whole story. Employers also need to be aware of the Disability Discrimination Act (and some state laws), which sets out their positive obligation to make reasonable adjustments as outlined above.

Anti-discrimination laws apply regardless of whether or not an employee’s disability was the result of a work-related injury. Employers need to be aware of this if they receive a request for an adjustment.

Avoid complaints

If an employer fails to provide for an employee with a disability in accordance with anti-discrimination laws, a complaint may be brought against them. Most discrimination complaints are resolved through the conciliation process of the Australian Human Rights Commission, or the relevant state equal opportunity commission, but some do end up running in court.

Complaints can result in the employer being ordered to make the reasonable adjustments and/or pay compensation. Being familiar with your responsibilities and obligations as an employer will greatly reduce this risk.

A better workplace

According to the National Disability Strategy, work is essential to a person’s economic security and is important to achieving social inclusion. Employment contributes to physical and mental health, personal wellbeing and a sense of identity. Income from employment increases financial independence and raises living standards, and enables people with disabilities to purchase goods, use services and access information just as people without disabilities do.

A productive workplace is one that’s supportive, diverse and inclusive. The number of Australians with disabilities will continue to increase as our population ages — it’s important that the participation of these employees is accommodated and supported accordingly so no-one is locked out of the workforce.

TOPIC: Employment law
RELATED LEGAL SERVICES: Employment law

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Kamal Farouque

Maurice Blackburn Melbourne
Kamal Farouque is a Principal in Maurice Blackburn's Employment practice with extensive experience in employment, discrimination and workplace law. Kamal is well recognised as an effective employment lawyer. He is one of the select few Melbourne employment lawyers recommended by Doyle’s Guide as a leading lawyer in his field, and he is also listed by Doyle's Guide as the preeminent Australian employment lawyer for employees as well as being part of the only first tier law firm for employee & trade union representation in Victoria in 2017. He was invited by the Fair Work Commission to present a moot for Law Week on the anti-bullying jurisdiction, has an in-depth understanding of the legal and practical aspects of employment law and knows how to navigate the myriad of issues in this increasingly complex and ever-changing area of law. Kamal advises employees, including senior executives, on employment issues including: redundancy entitlements and redundancy pay claims contractual pay rights including bonus rights, short term incentive (STI) payments, long term incentive (LTI) payments and sales commission payments wrongful dismissal and reasonable notice claims Fair Work Act adverse action (general protections) dismissal and non-dismissal claims discrimination claims under equal opportunity laws, including sexual harassment, sex discrimination and maternity leave discrimination claims disciplinary issues including advising employees on their rights in the disciplinary process, the strategy and tactics of dealing with disciplinary process and litigation options statutory employment rights of Commonwealth and Victorian public sector employees negotiating contracts of employment which better protect employee rights, and exit strategies to negotiate favourable terms of departure when the employment relationship has deteriorated. Kamal also has experience in conducting litigation in courts and tribunals including the Federal Court, the Supreme Court, the Magistrates Court, industrial tribunals and discrimination tribunals. Examples of his experience include representing: a senior Victorian public sector employee in Federal Court litigation over a disciplinary process which resulted in a landmark decision by the Court to overturn her suspension and put her back to work Quinn v Overland [2010] FCA 799 (28 July 2010) dismissed employees in Federal Court interim injunction applications in adverse action cases to have their employment reinstated eg AMWU v McCain Foods [2012] FCA 1126 (16 October 2012) a senior IT professional who had been dismissed by a major bank for alleged misconduct. Kamal was successful in having his client reinstated with payment of significant compensation George Levendakis v ANZ Banking Group Limited (AIRC, PR915057); ANZ Banking Group Limited re George Levendakis v ANZ Banking Group Limited (AIRC, PR918604), and Victorian special operations group police officers in a case before the Magistrates Court and the Full Federal Court to recover a substantial amount of unpaid allowances Chief Commissioner of Police v Kerley [2008] FCAFC 41 (20 March 2008). Kamal also has extensive experience appearing as an advocate having practised as a Barrister at the Victorian Bar between 1999 and 2004. Memberships & accreditations Law Institute of Victoria Member Awards Doyle's Guide Victorian Preeminent Employment Lawyer 2017 Doyle's Guide Australian Preeminent Employment Lawyer 2016 Doyle's Guide Melbourne Leading Employment Lawyer 2016 Doyle's Guide Leading Employment Lawyer 2015 Doyle's Guide Recommended Employment Lawyer 2014 Doyle's Guide Recommended Employment Lawyer 2013 Doyle's Guide Recommended Employment Lawyer 2012 ...

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