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Indirect Discrimination for Failure to Follow up on Employment Form

In Ferris v Department of Justice and Regulation (Human Rights) [2017] VCAT 1771 a recent case in the Victorian Civil and Administrative Tribunal, the Victorian Department of Justice and Regulation was found to have indirectly discriminated against a former employee who had undisclosed Type 2 Diabetes that was aggravated by his working conditions.

In Victoria, there are two types of discrimination under the Equal Opportunities Act 2010 (“EO Act”) – direct and indirect.  (This is the same in most other state jurisdictions.  In NSW, see s.49B(1)(b) of the Anti-Discrimination Act which allows for a finding of indirect discrimination on the grounds of a disability.)

Section 8 of the EO Act defines “direct discrimination” to occur if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

Section 9 of the EO Act defines indirect discrimination to occur if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute and that this is not reasonable.

This means that an employer can be found to have committed indirect discrimination if they have workplace arrangements that unreasonably disadvantage people with a protected attribute such as a disability.

The main difference between direct and indirect discrimination is that with indirect discrimination, the alleged perpetrator (i.e. the employer) need not be aware of the condition that the employee has that is being impacted. This is particularly significant in cases of disability discrimination as some employees may decline to detail their entire medical history on employee forms for privacy or other reasons, as happened in the current case.

The Facts

There was a dispute between a former store supervisor at Langi Kal Kal prison in Victoria. He was suspended and later terminated for misconduct.  He alleged this action was a form of unlawful discrimination due to his medical condition of Type 2 Diabetes.

The Applicant alleged that he was required to endure unreasonable working conditions over a three year period prior to the termination of his employment, due to a significant increase in prisoners without a similar increase in staff. This unreasonableness was characterised by an inability to finish the required work each day, a lack of proper breaks, a necessity to either skip meals or eat while working and the need to occasionally work significant overtime to finish the work of the day.

When his employment was terminated in 2014, the alleged grounds of misconduct included the Applicant having aggressively sworn at a prisoner, failing to comply with a direction in relation to his swearing and not properly accounting for money in the course of his duties.

The Decision

Vice President Judge Harbison did not find that direct discrimination had occurred as the suspension and later termination were not the result of his medical condition but rather due to misconduct.  VP Judge Harbison held that finding a link between unmanaged diabetes and his misconduct was “far too speculative”.

VP Judge Harbison however held that the claim for indirect discrimination was successful as the Applicant had experienced a worsening of his diabetes due to the unreasonable working conditions imposed by his employer.

In explaining his reasoning, VP Judge Harbison stated that:

It might seem a harsh result to find a respondent guilty of indirect discrimination in a situation where that respondent has no actual knowledge of the impact a disability will have on the requirement which it has imposed on its employees. However, it will often be the case that a respondent to a claim of indirect discrimination has no knowledge of the discriminatory effect of its requirements on individual persons with a disability.

This finding of indirect discrimination was held to be valid despite the Respondent having procedures in place to deal with medical conditions that would have prevented the discrimination from occurring. These procedures were found to have not been enacted because the employer had not followed up on the Applicant leaving the relevant part of his employee information form blank and the Applicant had been unaware of the procedures available to assist him.

As the employer had a procedure available, and the termination of the Applicant’s employment was not found to be linked to discrimination, the Tribunal did not make an award for compensation. This was because Mr Ferris:

had taken no steps at all to warn his employer of the effect the increased workload was having on his health

despite there being no evidence that he felt intimidated into not raising it. VP Judge Harbison held that the procedures:

were not implemented because Mr Ferris did not advise the respondent that they were required. Had they been implemented, there is no reason to suggest that there would have been any detriment to the applicant at all.

Message for Employers

This decision highlights the need for employers to have proper procedures in place to prevent indirect discrimination. As shown above, indirect discrimination can occur without the employer realising it.  Therefore all employers should ensure that all employees are aware of the policies and procedures available to them and that they should be encouraged to speak out if they are experiencing difficulties in the workplace.  Additionally, this case demonstrates that employers have an obligation to make enquiries when a future employee leaves a section blank on an employee information form.

We recommend that legal advice be sought to ensure your policies and procedures are adequate in dealing with employees who are experiencing difficultly in the workplace to prevent against unintended exposure to indirect discrimination.