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DISCLOSURE OF DISABILITY IN THE WORKPLACE:

RIGHTS AND RESPONSIBILITIES OF EMPLOYERS AND ACTUAL OR POTENTIAL EMPLOYEES WITH DISABILITY

SUGGESTIONS FOR BEST PRACTICE

Cristina Ricci

Human Rights and Equal Opportunity Commission

Presented at the Australian Employers’ Network on Disability seminar: Disclosure of disability in the workplace

Canberra, 28 March 2007

Introduction

I would like to acknowledge the traditional owners of the land on which we stand and pay my respects to their elders both past and present.

And I would like to thank the Australian Employers’ Network on Disability for organising this very important seminar to examine this critical issue of ‘disclosure’ which continues to be a significant issue for employers and a barrier to employment for people with disability.

The issue of disclosure in the workplace is an important one as it involves a delicate balance between the rights and responsibilities of employers on the one hand and those of jobseekers and employees with disability on the other.

From the perspective of the employer, disclosure is often seen as a very straightforward, uncomplicated issue – the right of the employer to know.

From the perspective of people with disability, however, the issue is fraught with the knowledge that disclosure of their disability more often than not results in termination of employment or non-progression in a recruitment process. So, for people with disability the personal decision to disclose is equated with a very real fear of negative consequences. Knowledge and accommodation of this fear by employers is a key factor in supporting disclosure for the mutual benefit of employees, so their needs are accommodated and any adjustments provided, and employers, so the best person for the job is selected, productivity is maximised and legal obligations are met.

For the purpose of this presentation, the term 'disclosure' refers to the personal decision by a person with disability to tell another person or institution about their disability.

However, “disclosure of disability” may occur in many ways and at many points along the employment continuum. Disclosure may occur:

• during the recruitment phase or at interview
• as a result of unclear application forms/medical assessments
• during a referee check
• after an offer of employment
• as a result of a privacy breach by a colleague
• after performance issues have been raised
• due to exacerbation of disability
• just prior to termination of employment

 

Regardless of how the disclosure occurs, employers will need to deal with the same issues.

The aim of this presentation today is to talk about disclosure from a positive perspective regarding the rights and responsibilities of both employers and employees with disability and to examine the issue from a practical perspective for the employer: the “do’s and don’ts”.

But firstly, I will take a few minutes to address the principal ‘mistaken’ motivator which seems to drive the perception that employers have a right to know about their employees’ disability which often  results in the termination or non-progression of a candidate with disability in a recruitment phase.

It is important to remember from the outset that non-disclosure does not mean dishonesty, as there are valid reasons, and as I have mentioned, real fears, for non-disclosure, and I will return to this a little later.

I will then take a few minutes to outline the benefits of creating a supportive workplace which, as a by product, creates a workplace which fosters disclosure before returning to the main focus of the presentation today.

Safety myths about people with disability in the open workplace

In 2005, the Human Rights and Equal Opportunity Commission conducted a National Inquiry into Employment and Disability. During that Inquiry, HREOC found that one of the main impediments to the employment of people with disability lies in employer concerns about increased exposure to legal and financial risks related to occupational health and safety, disability discrimination and unfair dismissal laws. The primary concern appears to be the belief that there are higher health and safety risks when there are people with disability in the workplace, and therefore greater exposure to workers compensation claims. These beliefs appear to be strong enough to have a significant impact on hiring and termination decisions by employers. Furthermore, these beliefs then drive many employers to the erroneous conclusion that they have a right to know about their employees’ disability because they fear they are exposing themselves to increased safety risks, legal liability and escalating premiums.

But there is no evidence that people with a disability are a higher safety risk; in fact there is evidence to the contrary. And there is no-one better to refer to on this than Bill Scales, the Chairman of the Australian Safety and Compensation Council.

Last year the Chairman of the Australian Safety and Compensation Council delivered a paper titled “Safety and disabled workers: dispelling the myths” to the International Forum on Disability Management held in Brisbane. After analysing the available evidence, both national and international, regarding safety and people with disability and workers compensation claims, the Chairman concluded his speech with the following statements:

• There is no compelling evidence that people with a disability are less safe at work than any other worker. In fact the evidence seems to suggest that people with disabilities have less injuries at work than other workers.
• There is no compelling evidence that the workers compensation costs for people with a disability are greater than any other group of workers.
• While there are some costs involved in modifying the workplace for some people with a disability, the costs are not significant and the benefits significantly outweigh the costs.
• And from my personal experience of employing people with a disability, I can without equivocation say that it enhances the skills, the values and the capabilities of those organisations who are sufficiently enlightened do so.

 

Other business benefits – flexible workplaces

In addition to the last point made by the Chairman of the Australian Safety and Compensation Council, there are other business benefits that emerge from opening up the recruitment phase to all candidates, including people with disability, and from retaining employees who acquire a disability during their term of employment. These include: selecting the best candidate for the job, and a workplace that ultimately is flexible and responsive to the needs of all employees – including people who have permanent, temporary or fluctuating disability, parent and carers or employees who need to cope with major life events.

HREOC has found that employers who seek to accommodate people with disability and provide a flexible workplace, create an environment which fosters disclosure of disability. In these environments as disclosure is not seen as a threatening course of action to take, but rather a course of action which ultimately is in the best interests of the employer and the employee and ensure employees remain at their most productive and skills and experience are retained.

Before discussing rights and responsibilities from the employer perspective in relation to disclosure, it is important to note that the Disability Discrimination Act (DDA) makes it against the law for an employer to discriminate against someone on the grounds of disability. This means that employers must offer equal employment opportunities to everyone and disclosure can and does influence how this plays out in reality.

But let me return to a brief analysis of disclosure from the perspective of the rights and responsibilities of employers and employees.

Disclosure and Rights and Responsibilities of Employers

With regard to disclosure, the first thing to say is that there is no legal obligation for an employee to disclose their disability to an employer, unless it is likely to affect their ability to meet the inherent requirements of the job.

The term inherent requirements is not defined in the DDA. In HREOC’s view, inherent requirements need to be determined in the circumstances of each job. They may include:

• the ability to perform the tasks or functions which are a necessary part of the job productivity and quality requirements, the ability to work effectively in the team or other type of work organisation concerned
• the ability to work safely.

Can an employer ask questions about a person's disability?

So discussion, questions and examinations regarding a person's disability and its effects may be legitimate, necessary and desirable:

• to determine whether a person can perform inherent job requirements
• to identify any reasonable adjustments required, in selection for employment or in the performance of work
• to establish rights and obligations regarding superannuation, workers' compensation and other insurance.

HREOC considers that discouraging, or unnecessarily restricting, discussion or inquiries regarding a person's disability in these or other legitimate work related respects would be damaging to effective equality of opportunity and thus would be contrary to the objects of the DDA as well as presenting difficulties for employers. HREOC does not interpret the DDA as having this effect.

This does not mean, however, that every disability related inquiry should be accepted as permitted or desirable. Inappropriate questions or examinations in relation to disability may lead to, or actually constitute, discrimination. Concerns in this area include

• the potential of inappropriate questioning or examinations to cause humiliation and to distract both employer and potential employee from the real business of establishing effectively whether and how a person can do the job and whether he or she is the best person for the job
• the potential for disability related information (particularly in application forms) to be used as the basis for discriminatory decisions, without sufficient interaction between the employer and the person with a disability to deal with concerns which the employer may have about the disability
• potential disclosure of sensitive personal information regarding a person's disability to other employees or third parties or failure to protect such information from unauthorised access.

Failure to give appropriate protection to confidential personal information in relation to a person's disability may involve or lead to discrimination in some circumstances, as well as discouraging disclosure and discussion of disability related issues.

Employers should also note that a medical, psychological or other expert report does not displace an employer's responsibility for non-discriminatory decision making.

Standard or routine questions

With regard to routine questions about disability, such as "have you ever had a mental illness?", in an application form or selection process, this may have the effect of excluding or disadvantaging applicants with a disability. If a question has this effect it may be unlawful indirect discrimination and therefore, standard or routine questions should not be asked.

Application forms

With regard to questions about disability in an application form, employers should note that questions which may be reasonable and permitted at interview, for example to examine whether a person's disability affects their ability to perform the inherent requirements of the job or to determine whether reasonable adjustment is required and possible, will not necessarily be regarded as reasonable or permitted in an application form.

Employers should be cautious about including disability related questions in application forms, other than for the purpose of inviting applicants to identify any adjustments required to ensure equal opportunity in the selection process itself. Routine or standard questions should be reviewed to ensure that they are included for a good reason and not for discriminatory reasons, that is, to identify people eith disability so that they are eliminated from the selection process. The DDA (section 30) specifically makes it unlawful to request information for the purpose of an act which is or would be unlawful.

So what inquiries and examinations about disability are permitted?

The DDA does not set out particular forms of words as permitted or prohibited. Rather, the lawfulness of inquiries or examinations under the DDA depends on whether they are for a legitimate purpose and are a reasonable means for achieving that purpose. Employers should ensure that

• they know why they are collecting information and ensure that this is for a legitimate purpose, and
• the information obtained is only used for the purposes for which it was properly collected and is protected against improper access or disclosure.

Employers are also advised to make clear to the person with disability the purpose for which they request or require disability information, to reduce misunderstandings which might lead to fears of discrimination.

Statistics and Data collection

HREOC is often asked about disclosure in relation to data collected to estimate the number of people employed and to devise appropriate disability action plans. HREOC suggests that employers need to be mindful that some people with disability may not have disclosed their disability for fear of harassment or discrimination. In this situation, if employers are genuinely trying to collect data to estimate the number of employees with disability, privacy must be ensured and a confidential means of data collection devised.

Information for equal opportunity and reasonable adjustment purposes

With respect to information for equal opportunity and reasonable adjustment purposes, actions which are reasonably intended to provide equal opportunity to people with a disability or to persons with a particular disability are permitted by the DDA (section 45) and are encouraged by HREOC. They include inquiries, examinations or actions which are reasonably intended for the purpose of determining the need for, nature of, and possibility of making any reasonable adjustment required. There is no requirement in the DDA that such discussions should occur only after a job offer is made. However, HREOC suggests that generally it will be more appropriate to discuss reasonable adjustment issues in an interview rather than in an application process, except so far as issues concern any need for adjustment in the selection process itself.

Determining ability to perform job requirements

In HREOC’s view inquiries, examinations or actions reasonably intended to determine a person's ability to perform the inherent requirements of the relevant job are lawful under the DDA.

Employers should ensure, however, that inquiries or examinations to determine a person's ability to perform inherent requirements are a reasonable means for this purpose. For example, a requirement for information or a medical examination, although intended to determine a person's compliance with inherent requirements, might be found to be discriminatory if it is so poorly suited to that purpose that it cannot be said to be "based on" the inherent requirements of the job. People with disability are generally aware of the adjustments they need so questions are better framed from this perspective.

Responses to disclosure

Once an employee has disclosed a disability, an employer is required to consider appropriate responses, including training or work related adjustments, to accommodate the employee with disability.

Determining insurance and superannuation entitlements

With respect to determinng insurance and superannuation entitlements, reasonable requests or requirements for information or examinations to determine insurance (including workers compensation) or superannuation entitlements are permitted (section 46 of the DDA). It may be advisable, however, to separate questions for these purposes as far as possible from questions for the purpose of making employment decisions, to reduce the risk of this information having a discriminatory effect on employment decisions or being regarded by an employee or applicant as having a discriminatory effect.

EMPLOYEE RIGHTS AND RESPONSIBILITIES

From the perspective of employee rights and responsibilities, as mentioned previously, there is no legal obligation for employees (actual or potential) with disability to disclose information about their disability, unless it is likely to affect their performance or ability to meet the inherent requirements of the job, including their ability to work safely and ensure the safety of co-workers.

Employees may also need to discuss their disability with their employer if they need to request reasonable adjustments when being considered for the job (such as interview arrangements) or when doing the job (such as modified equipment or flexible working arrangements).

Any other questions about an individual’s disability are inappropriate, including questions about:

• how the individual acquired their disability
• specific details of the individual’s disability.

Disclosing information to other parties

Information about an employee’s disability will often involve sensitive personal issues.

To encourage employees to be open with their employers about disability issues, employers need to reassure people with disability that any information they provide will be treated appropriately.

In order for information about an employee’s disability to be shared with other people within an organisation (for example, human resources), employers are advised to obtain written consent from the employee with disability, unless the sharing of that information is otherwise authorised, or required, by or under law.

The Privacy Act also requires employers to respect the employee’s right to privacy. Failing to protect confidential personal information in relation to a person’s disability may involve or lead to discrimination in some circumstances.

Conclusion

To encourage disclosure and employment of people with disability HREOC believes it is important for employers to ensure that an environment of trust is created with an assurance that disclosure will be accompanied by an attempt to accommodate disability if the person is the best candidate for the job or to retain a current employee with changing needs.

This approach will ultimately be to the mutual benefit to both the employee, so their needs can be accommodated, and the employer, so the best person for the job is selected, productivity is maintained and legal obligations are met.

Thank you