BlandsLaw - Discrimination – What not to ask
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Discrimination – What not to ask

Apply NowA recent Queensland Civil and Administrative Tribunal (QCAT) decision* highlights how easily employers may breach anti-discrimination legislation without necessarily intending to do so.

The complainant, a prospective employee, brought a claim against Woolworths because the online job application form required him to state his gender, date of birth and confirm his ability to lawfully work in Australia. Essentially the claim was that the requirement for job applicants to supply this information breached Queensland’s Anti-Discrimination Act by unnecessarily requesting information during the recruitment process which could form the basis for discrimination.

Woolworth’s arguments included that the information allowed them: to recruit for positions where employees needed to be over 18 years of age; to comply with gender reporting requirements; and avoid breaching the federal immigration legislation.

In an interesting decision, QCAT held that Woolworths could not satisfy the exception in the legislation which required them to show that it was reasonably necessary to gather the information. QCAT found that on the facts, the collection of data could occur without making it a mandatory requirement that job applicant’s specify their gender; a more general question could be asked of age (ie indicate if you are over 18) and further information and documentation including immigration status could be gathered at a later stage if needed. Woolworths could have, and have now, modified their questions to be less intrusive and/or specific.

The complainant was awarded $5000 which included an amount for the loss of the chance that he may have got the job if Woolworths had not engaged in the discriminatory conduct.

Lessons for Employers

Anti-discrimination legislation differs between States and Territories around Australia. This particular decision was based on the Queensland legislation.

The decision does however highlight the importance of employers understanding their obligations under the relevant legislation and being aware that these may include prospective as well as existing employees. It can be easy to breach your legal requirements if you have not turned your mind to how it applies to your particular business practices (ie your application forms etc).

In light of both anti-discrimination legislation and the new federal privacy requirements it is important to consider carefully what information you request from individuals and ensure that it is both lawful and necessary for the task at hand.  

*Willmott v Woolworths Ltd [2014] QCAT 601.

 

Andrew Bland & Sarah Waterhouse

Solicitor

BlandsLaw

 

 

 

 

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