De-mystifying discrimination and mental health

 By Thomas Parer and Lindsay Carroll, NRA Legal

The last major study into mental health in Australia by the Australian Bureau of Statistics confirmed that 15% of Australians had experienced an affective disorder like depression, while 26.3% have experienced an anxiety disorder.

The increasing awareness of mental health amongst the general population also means that workers are more aware than ever of the potential for their employers to discriminate against them on the basis of these conditions.

So what is an employer to do when it comes to mitigating a potential claim against them for disability discrimination?

We are going to step through some of the concepts that are essential in understanding discrimination law, and then apply these concepts to mental health specifically.

What is discrimination?

Discrimination occurs where, on the basis of a protected attribute, a person is treated less favourably than another person without that particular attribute (called the comparator) in the same circumstances. All Australian legislation dealing with discrimination includes disability, or an impairment, as a protected attribute.

In the context of mental health, discrimination could be said to occur where someone is treated less favourably because of their mental impairment, illness, or disability. This generally will include manifestations of this illness, such as a train driver with Post-Traumatic Stress Disorder due to a train crash feeling violently ill when asked to drive a train again, as in the case of RailPro Services Pty Ltd v Flavel.

Depending on the relevant jurisdiction, this could even include an ‘assumed’ disability, like in the recent case of Stefanac v Department of Family and Community Services. In this matter, the complainant was awarded compensation after her employer had assumed she had a mental illness and had directed her to take a period of ‘sick leave’, due to suspicions that she had a mental illness because she had been enthusiastically discussing ‘conspiracy theories’.

Reasonable adjustments & unjustifiable hardship

In federal and most state anti-discrimination legislation, there is a requirement to make reasonable adjustments to accommodate a disability or impairment, which is determined on a case-by-case basis.

On becoming aware of an employee’s disability and the potential for it to affect their ability to perform their role, an employer should open a dialogue with that employee and seek the advice of a professional on potential reasonable adjustments. In the case of someone who is experiencing fatigue due to their depression, it may mean agreeing on a change of hours to when they are at their most alert.

However, there is a limit. The requirement will not exist where its imposition would result in unjustifiable hardship on the employer. Whether an adjustment will be an unjustifiable hardship will also be determined on a case-by-case basis, and the cost and availability of an adjustment will be relevant.

For example, in the case of Gibbons v Commonwealth of Australia, a police officer was found not to have been discriminated against when he was terminated because of behaviour arising out of his psychological impairment. The Court held that the requirement for the employer to provide constant and intensive supervision would cause undue hardship to the employer, and so a failure to provide this adjustment would not found a discrimination claim.

All this being said, it is noteworthy that no such requirement for reasonable adjustments exists in relation to a claim for adverse action under the Fair Work Act 2009 (Cth), as was confirmed in the case of Kubat v Northern Health.

Inherent requirements

A further exception to discrimination exists in relation to employment where there is a genuine occupational or inherent requirement that a person with a particular disability cannot meet.

An inherent requirement is an essential element of the particular employment and will not merely be the physical activities involved, but also the activities of the employment. For example, an inherent requirement of working in a fast food restaurant may be being able to work in a high pressure, fast-paced environment, and so a person with a panic disorder may not be able to fulfil this requirement.

In the case of Chalker v Murrays Australia Pty Ltd [2017], an employer attempted to rely on the inherent requirement exception where they had made the decision not to proceed with hiring an applicant with borderline personality disorder.

As the candidate had driven a bus without incident since his diagnosis, in a pre-employment form, he said he had no condition affecting his ability to perform the inherent requirements of a role. The employer opted not to hire him when a routine medical assessment revealed his borderline personality disorder, as they believed this was dishonest.

During the medical assessment, it was not determined that he was unfit to perform the inherent requirement of driving safely, rather it had determined he was temporarily unfit pending investigation by a psychiatrist.

If they had proceeded with a psychiatric assessment that had confirmed the applicant was not fit to perform the inherent requirements, the employer may have been successful in claiming this exception. However, the decision to not follow this recommendation, and instead discontinue his recruitment, meant that the defence did not succeed.

Before any decision in relation to someone’s employment is made, an employer should take the time out to ensure that a requirement being considered truly is inherent and genuine. Failure to consider this, or to make an appropriate assessment of the capacity to fulfil this requirement may lead to a successful discrimination or adverse action claim by an employee.

This case is helpful for understanding both the concept of the inherent requirement exception. This case illustrates a valuable lesson for employers: make sure you have a clear understanding of the inherent requirements of all positions in your organisation, and seek the advice of the relevant medical professional in determining whether an employee can, or cannot, perform this requirement.

Managing employees with impairments or disabilities can be difficult, and many employers can easily get it wrong. That’s why we’re here to help. If you need help in managing a situation involving an employee with a disability, contact the NRA Workplace Relations team on 1800 RETAIL (738 245) for advice.