Knowing about legal rights and obligations
Knowing about legal rights and obligations that affect graduates with disability at work and their employers is a critical first step to becoming disability confident in the workplace.
The key legislation that affects workers with disability and their employers have been created to ensure that people with disability have an equal chance to make a full contribution to workplaces at every level of employment. The most relevant laws cover the areas of disability discrimination, privacy, and work health and safety.
Commonwealth and similar state and territory privacy laws in Australia affect how employers are required to treat information from employees with disability about their disability. Here are some basic facts about rights and responsibilities under the privacy-related legislation across Australia:
- People with disability are not legally obliged to tell their employer about their disability unless it affects their ability to meet the inherent requirements of the position (go to section on Disability Discrimination), including to work safely in the workplace.
- Where the employee or a job applicant does tell the employer about their disability, the employer is legally responsible for treating that information privately and confidentially. This means that the information should not be shared with others without the express consent of the person with disability (except where it is required by law, for example to prevent or lessen a serious imminent risk to the health of any person).
- An employer must also take active steps to protect the privacy of any recorded information about a worker's disability.
Where the information about a worker's disability is shared with others it must be for the same purpose that it was obtained (for example, only to set up workplace adjustments and not other purposes).
- This private information must also only be shared with others on a 'needs-to-know' basis where the least amount of necessary people are given the information.
- All employers are also required to provide workers with information about the reasons and way that personal information is collected and held by them.
Work Health and Safety
Commonwealth and similar state and territory work health and safety laws say that an employer is required to provide a safe and healthy workplace and take active steps to prevent or lessen potential risks.
Some employers mistakenly believe that people with disability will make their workplace less safe and pose risks to themselves and others.
Here are 5 ways that an employer can balance their responsibilities under work health and safety laws and the legal requirement to prevent unfairly excluding a person with disability:
- Treat safety as an inherent requirement (go to Disability Discrimination Law to find out about 'inherent requirements'): Remember that ability to perform a job safely is considered an inherent requirement.
- Assess actual and not perceived risks: Do not exclude a person with disability based on perceived risk (uninformed views about the person's disability and the risks they pose). Instead make an objective assessment of the facts of the individual affects of the person's disability in this particular situation.
- Consider the 'Comparator Test': Treating a worker with disability differently to co-workers without disability may be discrimination. Compare how you would treat a worker without disability in the same situation. Case law shows that discrimination could be tested by considering whether an employer has treated the worker as closely as possible to earlier precedents in the workplace with employees without disability.
- Make workplace adjustments: Implement any reasonable workplace adjustments that will help the person with disability to work safely.
- Follow a proper process before making any decisions: If you do need to exclude the worker with disability because of their disability and occupational health and safety concerns you must:
conduct a proper assessment of the real (not perceived) risks;
- consider the individual circumstances;
- explore all reasonable 'workplace adjustments';
- document the reasons for the decision to exclude the person and actions taken to minimise any unfavourable consequences for the individual.
Anti-disability discrimination law in Australia is designed to protect people with disability against being treated unfairly because of their disability and allowing them the opportunities needed to fully participate in all areas of Australian life. Here are some key points of how this relates to graduates with disabilities at work and their employers.
Here you will find information on:
- What is disability discrimination?
- Who is covered?
- What areas are covered?
- What are anti-discrimination rights and responsibilities at work?
The Commonwealth Disability Discrimination Act (1992) and corresponding state and territory laws across Australia say that disability discrimination is when a person or people with disability are treated less favourably than people without disability because of their disability. This includes protection against discrimination, harassment and victimisation of people with disability and their associates in employment and many other areas of life (see below).
The anti-discrimination law defines disability very broadly and includes points that you and many others may not have thought of as a disability. The Disability Discrimination Act (1992) says that a disability includes any:
- total or partial loss of a person's bodily or mental functions
- total or partial loss of a part of the body
- presence in the body of organisms causing disease or illness
- malfunction, malformation or disfigurement of a part of a person's body
- disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction
- disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement, or that results in disturbed behaviour.
This definition includes these disability types and others that a person has now, has had in the past, may have in the future or are believed to have (go to 'What is disability' for more details about specific disability types):
- Mental illness
- Chronic medical conditions
- Learning disabilities
- Physical disfigurement
Disability discrimination also occurs when people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with a disability.
Anti-discrimination rights and obligations apply to all areas of employment, including:
- terms and conditions of employment;
- promotional opportunities and access to professional development;
- disciplinary action; and
Anti-discrimination legislation also applies to education settings, including schools and post school training providers. The same types of responsibilities apply.
- Employees with disability (including applicants) are protected by anti-disability discrimination law against being excluded from employment which they have the ability to perform safely.
- The law also gives the right to an employee with disability to have reasonable changes called 'workplace adjustments' made to the way they work and/or the workplace. These changes are to allow them to perform their core duties, called 'inherent requirements', and to do so safely.
- An employer must by law offer and implement any reasonable workplace changes needed by a worker with disability that allows them to perform the core functions, or 'inherent requirements', of a job safely, participate in the workplace, and have equal access to opportunities for professional development, promotions and working conditions.
- If an employer declines to make workplace adjustments they must be able to show 'unjustifiable hardship' which means an impossible disadvantage to the employer financially, in workplace relations, and/or core functions of the business.
- Anti-discrimination law makes it a legal responsibility of an employer to remove workplace barriers to an employee with disability being able to fulfil their duties and participate in the workplace.
- This is to be done by making reasonable adjustments in the workplace that would enable a worker with disability to work or participate in the workplace effectively. For more information on workplace adjustments go to the section called 'Making workplace adjustments'.
- Employers who fail to make reasonable workplace adjustments will be exposed to liability for unlawful discrimination as well as missing an opportunity for using the talents of the full pool of graduates.
- If the employer does not make reasonable workplace adjustments they must be able to demonstrate the organisation has explored all possibilities and that the adjustment would be considered unreasonable because it causes an 'unjustifiable hardship' on the employer that would be impossibly expensive; unfair to other workers; and/or cause huge disruption to the core function of the organisation.
- For further explanation of 'unjustifiable hardship' see the Australian Human Rights Commission website.
- Anti-discrimination law also says that the decision of whether an applicant or employee is able to fulfil a position must only be made based on whether the person can do the 'inherent requirements' of the job (with workplace adjustments, if required).
- 'Inherent requirements' are the core duties of a job that are necessary to perform the primary function of the job and to do so safely. There are always duties in a job that are not essential and these are to be excluded when considering whether a person with disability can perform a job.
- For further explanation of inherent requirements and how to determine what they are in a job, go to 'Making workplace adjustments'