In NSW, the Anti-Discrimination Act (1977) prohibits an employer discriminating against an employee who has a disability in deciding whether to offer employment and the terms on which employment is offered.
However, the Anti-Discrimination Act also provides that it is not unlawful discrimination if the employee is unable to carry out the ‘inherent requirements’ of the particular employment, and the provision of facilities by the employer, in order to allow the employee to carry out the ‘inherent requirements’ would impose ‘unjustifiable hardship’ on the employer.
In Laycock v Commissioner of Police, NSW Police it was stated that “the Anti-Discrimination Act [does] not require an employer to alter the duties of a job in order to accommodate a person with a disability in any circumstances”.
This means that, in NSW at least, an employer must look at what assistance can be provided to the employee, but is not required to alter the duties of the position (if those duties are ‘inherent requirements’ of the position).
It is still uncertain exactly how we are to define the ‘inherent requirements’ of a role. Nevertheless, it is important that employers carefully consider exactly what the employee can and cannot do, and whether the employer can provide any facility that may assist the employee to complete those duties, as a prelude to considering whether the employee is unable to perform the duties of the position.
If you require any assistance for any issues in workplace discrimination, please contact us at our Wangaratta office on (03) 5722 4681.
MORGAN COUZENS LEGAL
