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What legal protections do employees have against discrimination because of a physical or mental disability?

28/04/2022

Facing discrimination in the workplace can be a stressful and upsetting experience, especially for individuals struggling with mental health.

The Fair Work Act (the Act) provides protection for employees, insofar as it provides that employers must not take adverse action against an employee or prospective employee because of a protected attribute, such as a physical or mental disability.  In this context, disability refers to a particular physical or mental weakness or incapacity, including conditions that limit a person’s movements, activities, or senses.

Adverse action taken by an employer could include dismissal, altering the employee’s position to their detriment or discrimination between an employee and other employees.  Employers who are found to have taken adverse action against an employee on the grounds of a physical or mental disability, including mental health, can face significant penalties. For example, in the case of Penglase v Allied Express Transport Pty Ltd, where the applicant alleged that she was dismissed because of a Workcover claim for anxiety and stress.

Ms Penglase was employed as an Account Manager before taking some sick leave, for which she provided a medical certificate. Upon her return, she was asked to attend a company doctor to ensure she was fit for work. The company doctor reported that Ms Penglase was suffering from anxiety and stress disorder but was fit to return to her normal duties. However, shortly after returning, she was given three options – accept a demotion with a reduced salary, move to a more senior role with a significant increase in workload, or resign from her employment.

Ms Penglase completed a Workcover claim, returning to work approximately six weeks later to discover her position had been made redundant. She then filed an application in which she claimed her redundancy was in breach of the Act as it was because of her physical and mental disability and Workcover claim.

In considering the case, the Court found that Ms Penglase’s employer did not make her redundant because of her mental illness or because she took time off her illness, but they did take adverse action by altering her position to her detriment due to being unwell, so a penalty was ordered.

While employees have protection against adverse action motivated by discrimination, the Act does not strictly prohibit all forms of discrimination. The protection does not extend to action that is:

  1. not unlawful under any anti-discrimination law in force in the place where the action is taken (such as the Equal Opportunity Act 2010 in Victoria)
  2. taken because of the inherent requirements of the position concerned; or
  3. if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed taken:
    • in good faith; and
    • to avoid injury to the religious susceptibilities of adherents of that religion or creed.

In Victoria, employees are also protected under the Equal Opportunity Act, which places a positive duty on employers to implement reasonable and proportionate measures to eliminate discrimination as far as possible. The positive duty applies to employers of all sizes, from major companies to small businesses, and covers all types of workers