Responding to disclosure
There is no legal obligation for an employee to disclose their disability to you unless it is likely to affect their performance to meet the requirements of the job. When disclosure has been made, however, you need to consider appropriate responses including work related adjustments to support the person with a disability. It is important to remember that an employee can successfully meet the essential selection criteria for the job requirements with appropriate work related adjustments.
Sometimes, employees disclose their disability even though they do not require any specific adjustments at this time. This may be done to alert you to the possibility of future requirements, or to illustrate their resourcefulness or adaptability. It is important to assess what is the purpose of the disclosure and what is being requested of you.
Employers need to ensure that the inherent requirements of the position are reasonable and accurate and ensure that they do not disproportionately exclude people with a disability.
The employer’s role is:
- to be non intrusive and respectful of the employee when they have disclosed their disability
- to meet with the employee to discuss the employees issues and inform them about available support structures and service in the organisation
- discuss with the employee the type of work related adjustments that may be required for the job. Discussions may include identifying appropriate adjustments, and developing a 'Plan of Action' that outlines timelines for the implementation of the adjustments, support, training and follow up
- to organise the work related adjustments required. If this task is to be delegated to a staff member, it is the role of the manager to ensure that the information is relayed in an accurate, non-discriminatory manner and that the task is followed through
Federal and State Privacy Acts provide standards for organisations to be responsible in collecting, using and disclosing personal information as well as keeping information secure, being open about the collection and information handling practices and ensuring anonymity where possible.
An employer's main obligations under the Disability Discrimination Act are:
- not to discriminate directly by less favourable treatment
- not to discriminate indirectly by treatment which is less favourable in its impact
- to make reasonable adjustments where required
- to avoid and prevent harassment
An employer is responsible for thoroughly assessing the employees request for work related adjustments before claiming 'unjustifiable hardship'. This includes assessing:
- direct costs
- any offsetting tax, subsidy or other financial benefits available in relation to the adjustment or in relation to the employment of the person concerned
- indirect costs and/or benefits, including in relation to productivity of the position concerned, other employees and the enterprise
- any increase or decrease in sales, revenue or effectiveness of customer service
- how far an adjustment represents any additional cost above the cost of equipment or facilities which are or would be provided to an employee similarly situated who does not have a disability
- how far an adjustment is required in any case by other applicable laws, standards or agreements
- relevant skills, abilities, training and experience of a person seeking the adjustment
The Australian Network on Disability has a downloadable guide, Sharing and Monitoring Disability Information in your Workforce Guide (opens in a new window). The content will help employers to:
- prepare before you ask
- when to ask
- what to ask
For more information and resources, click on the following links:
When considering disability discrimination law and Work Health and Safety, the employer needs to review the specifics of the situation, on a case by case basis and recognising the requirements of work related adjustments with the Work Health and Safety Act (2011) (opens in a new window)