The effects of discrimination in the workplace can be damaging, not only in terms of business reputation but also staff commitment, morale and productivity. In Australia there are Anti-Discrimination laws as well as protections under the Fair Work Act 2009 (“FWA”) to provide legal redress for those who suffer as a result of discriminatory practices. The general protections under the FWA prohibit employers from taking adverse action against an employee on the basis of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status and so on. For instance, a job seeker is protected from being denied employment on the basis of a physical disability.

However, there is an exception to this general rule. The protection does not extend to action that is taken because of a person’s inability to perform the inherent requirements of the particular position concerned. This exception will apply even if the discriminatory basis is the reason that the person is unable to perform the inherent requirements of the role. In a recent case heard by the Federal Court[1], it was found that whilst adverse action was taken against a prospective employee who was denied employment because of a medical condition, the decision was lawful because his condition prevented him from performing the inherent requirements of the job. The candidate, who suffers from ankylosing spondylitis (arthritis), received a conditional offer of employment from the AFP; however two days later the offer was revoked because he had not met medical requirements.

The candidate relied on medical evidence from an occupational physician who stated that his activity level was “compatible with training requirements” and, while his history would increase his risk of injury, the degree of increase was “unquantifiable”. Furthermore, the candidate’s rheumatologist stated his condition would not pose a threat to others or the public and that treatment options were available in the unlikely event his condition deteriorated significantly.

Conversely, the AFP maintained that his condition would prevent him from performing the inherent requirements of the job, as it was “highly likely” he would need to wrestle people and to be able to twist “usually quite violently” to break free from headlocks. Justice Anna Katzmann stated that, whilst some employers rely on the ‘inherent requirements exception’ to deny employment to a prospective employee, this was not the case here. Rather, the AFP acted on a genuine belief about the candidate’s capacity.  It was found that, whilst the AFP took adverse action against the candidate, the protection could not apply as the action was taken due to the applicant’s inability to satisfy the inherent requirements of the role.

Like everyone else, a person with a disability should be afforded equal opportunity in attaining employment. However if the person cannot perform the inherent requirements of the job, then employers will be able to rely on the exception.  Having said that, employers must also consider whether  reasonable adjustments could be made which may enable the employee to carry out the role.

Determining the core activities, tasks or skills which are essential to a particular position is crucial prior to the position being advertised, particularly if a candidate is rejected due to an inability to perform inherent requirements.  Often this means carrying out a ‘job analysis’ to review details of any relevant physical requirements, customer service requirement, interpersonal skills, communication skills, computer skills, literacy skills and/or numeracy skills. Conducting a job analysis will be beneficial when determining whether any adjustments are reasonable or necessary. Employers should also consult with line managers and supervisors who are familiar with processes involved in carrying out the job in a safe manner.

Lessons for employers

• Review your company policy on Discrimination and Harassment. Ensure staff are well aware of the effects of discrimination in the workplace and do not engage in insensitive or belittling behaviours.
• Ensure the inherent requirements of a particular job are clearly detailed in the job description.
• Consider your recruitment process and ensure that managers are well trained in assessing whether a candidate possess the capacity necessary for the job.
• Remember to consider whether reasonable adjustments are required (unless this would cause ‘unjustifiable hardship’) and document these considerations,
• If unsure about a candidate’s capacity, consult with relevant experts (eg treating doctor) to determine whether the person is able to safely carry out the inherent requirements of the job.
• Employers must be mindful of their obligations to employees who are carers for those with a disability. This includes providing special arrangements, unless it causes ‘unjustifiable hardship’.

Summary:

A recent case heard by the Federal Court affirms that adverse action against an employee or a prospective employee with a disability will be lawful where it concerns the person’s ability to successfully and safely carry out the inherent requirements of the job.

[1] Shizas v Commissioner of Police [2017] FCA 61 (6 February 2017)

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