Reasonable adjustment

Notes for presentation to Employers Network on Disabiilty seminar, Sydney, July 17 2007

David Mason, Director, Disability Rights policy HREOC

Introduction

It's important to think about reasonable adjustment within a broader context of barrier free and flexible workplaces

The easiest adjustments to deal with are of course the ones you have already made.

• Clearly it's easier for example to accommodate a physical disability which an existing employee acquires if you already occupy accessible premises, than if you have to start making extensive modifications before they can return to work.
• It's easier to accommodate a new employee with a hearing impairment or who is blind if your information and communication systems are already designed to be accessible, and to be interoperable with adaptive technologies, than if these issues have to be addressed from scratch. I'll come back to issues of accessible procurement a bit later.
• Similarly it's easier to accommodate a person's need for flexible working hours to accommodate treatment, for example for cancer or for a mental health condition, if you have already thought about flexibility issues and developed policies or strategies to deal with these needs – perhaps using work already done on accommodating family and carer responsibilities.

It's important for us all in talking about reasonable adjustment not to appear to present employing people with disability as something new or exceptional being asked of employers.

Disability (whether temporary or longer term) is a normal part of life

• statistics indicate a round 1 in every 5 Australians, or over 3 million people, experience a mental disorder of some kind;
• 14 percent of the community, or around 2.6 million Australians, have a physical disability of some kind;
• over 1 million Australians have a significant hearing impairment , with around 30,000 Australians totally deaf;
• around 300,000 Australians have a substantial vision impairment with around 20,000 totally blind;
• and around 2 percent of the population, or 400,000 Australians, have an intellectual impairment

So it's no surprise that making adjustments to accommodate disability is a normal part of employing people.

An important point made to the Commission recently by a State workers' compensation authority is that, in talking about reasonable adjustments for people with a pre-existing disability, I don't think we've done nearly enough yet to draw on the amount of experience employers have in making adjustments to assist in return to work for workers who acquire a disability during employment.

Obviously there are some differences in detail between the legislative requirements of discrimination law to make reasonable adjustments and the requirements of workers compensation law to facilitate return to work. Workers compensation law probably requires more extensive adjustments than discrimination law in many cases. But both regimes are about maximising people's ability to contribute and not have their potential productivity unnecessarily limited or lost

Reasonable adjustment and the Disability Discrimination Act

At present the term “reasonable adjustment” doesn't actually appear expressly in the DDA, although the speech and explanatory material accompanying the introduction of the DDA into Parliament made quite clear that a requirement to make reasonable adjustments was intended to apply

Reasonable adjustment is implicit in the requirement to avoid indirect discrimination under DDA section 6.

Indirect discrimination occurs where a person with disability is required to comply with a condition or requirement which they cannot comply with and which a greater proportion of people without the disability are able to comply with.

If a person with disability needs some adjustment to be able to work or to be able to participate equally in some aspect of working life, and that adjustment could reasonably have been provided but was not, then a finding of indirect discrimination could follow.

Obviously though it would be better for everyone involved to have an express provision stating that there is a requirement to make reasonable adjustments and making clearer what the extent and limits of that requirement are.

The Productivity Commission's review of the DDA 2 years ago recommended amending the DDA to include such a provision and the government accepted that recommendation in principle over a year ago now, although we still are waiting to see legislation to give effect to that decision.

Employer policies on reasonable adjustment

A clear provision on reasonable adjustment in the DDA might assist more employers to develop clear policies on reasonable adjustment.

But the lack of such a provision should not lead employers to put off developing and implementing such policies

Having in place a clear policy statement on reasonable adjustments can help to build confidence so that employees voluntarily disclose and discuss disability issues rather than holding back information because of fears of discrimination.

And as already argued, failing to make reasonable adjustments means failing to make the most of opportunities for working productively, as well as risking liability under the DDA.

\Obviously, though, just having a policy statement which theoretically commits an organisation to making reasonable adjustment isn't enough – any more than a policy statement on other areas of discrimination such as sexual harassment is enough without procedures to deal effectively with the issues.

A complaints horror story

Amongst other issues today I was asked to discuss experience from complaints under the DDA.

I will not attempt to present summaries of many employment cases, since those are available anyway on our website.

Instead I want to talk briefly about one case, the McNeill case involving a Commonwealth department as the employer. Here is the summary of the case from our website:

A public servant with a vision impairment, whose probationary appointment was terminated, complained that she had been discriminated against, in that her poor work performance and difficulties in interpersonal skills resulted from the facts that she did not have the appropriate equipment to do her job and was being more intensely monitored than other employees.

The complainant required additional equipment to perform the tasks allocated to her; this equipment included a magnifying lamp and a computer program that magnifies text on a computer screen. Though most of this equipment was requested before or shortly after the complainant commenced work, all of it was not available and fully operational until ten months later.

The Commission upheld the complaint. The respondent had failed to implement satisfactorily its Reasonable Adjustment policy. The lack of operational equipment and intense monitoring did have a direct connection with the conduct and communications difficulties of the complainant. The complainant would have been able to fulfil the inherent requirements of the job and only failed to do so because of the lack of equipment and the intense monitoring and supervision. The respondent was ordered to pay the complainant a total of $50,900 consisting of $28,400 for loss of earnings and $22,500 for general damages.

Clearly this case involved an unhappy experience for everyone involved and included months of lost productivity and personal difficulty, and not only for the complainant. The amount of time lost to the performance of the objectives of the organisation was probably far more costly than the damages payout, and certainly more costly than it would have been to make the adjustments effectively.

The reason I mention a case like this from back in 1995 is to encourage you to think about whether the result would be different in your own organisation in 2007.

In particular, would adjustments to workplace equipment be made quickly enough to avoid the downward spiral into workplace relations disaster which the Commission found had occurred in the McNeill case?

As shown by that case, good intentions and a general policy commitment to making reasonable adjustments is not always enough.

Accessible procurement

Sometimes reasonable adjustment does involve modifying equipment or facilities, or acquiring specialised equipment or technology. Often though it should be possible to ensure that the facilities , equipment and systems to be used by all employees really are accessible to and usable by all employees – or at least that they are readily able to be adapted, or that they can work effectively with adaptive technology which the employee brings with them or which the employer acquires as a reasonable adjustment.

A couple of examples from my own experience at HREOC:

• At very short notice we wanted to base in our Sydney office a highly skilled person who has a significant physical disability and uses an electric wheelchair. Our premises have generally good physical access, but an initial concern was that she needed a desk at a very specific height. Thanks to the foresight of our procurement officer in specifying adjustable height furniture for all offices, it wasn't a problem – otherwise we could have faced not just embarrassment and expense but loss of critical time in a project where no time loss was acceptable.

Of course, if Commonwealth procurement policy specified accessible procurement as a requirement this would not have been just a matter of individual foresight, or luck, but something delivered more reliably by policy and procedures.

• A less happy story – Recently when, in common with many other organisations, we were moving our phone system over to a VOIP (Voice Over Internet Protocol) system, we were surprised to find how difficult it was to find a supplier who understood our need to ensure that the new system would work properly with TTYs for Deaf or speech impaired staff or customers; and how much work our own small IT section had to put into an issue where it would have been reasonable both to expect off the shelf solutions to be available and to expect that information would have been readily available – perhaps from within the Commonwealth government itself – on where to go for those solutions.

The Commission's national inquiry on employment and disability recommended that the Australian government adopt an accessible procurement policy similar to that which applies in the United States under section 508 of the Rehabilitation Act 1973 – preferably accompanied by information resources on where and how to implement accessible procurement, and preferably with those resources being available to employers more generally.

Although we have been pleased with the positive response of the Government to a number of the recommendations of the Inquiry – in particular the commencement of the JobAccess one stop information shop - we are yet to see much action on this one.

The Commonwealth Government of course is not the only possible game in town and we have been seeking to encourage discussion of accessible procurement initiatives by State governments, and also by local government and by educational institutions. Major employers could also usefully consider their own possible initiatives in this area.

Over to you

In conclusion the Commission is always interested in more feedback from employers on what you need from us to make implementation of reasonable adjustment easier and more effective in practice.