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What are we talking about? Some definitions…

What is a disability?

The term disability is defined in section 4 of the Disability Discrimination Act 1992 (DD Act). The definition in the DD Act is a broad one, and includes:

total or partial loss of the person’s bodily or mental functions
total or partial loss of a part of the body
the presence in the body of organisms causing disease or illness
the presence in the body of organisms capable of causing disease or illness
the malfunction, malformation or disfigurement of a part of the person’s body
a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction
a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

The definition includes disabilities that presently exist, previously existed, may exist in the future, and even those that are ‘imputed to a person’ whether or not they actually exist.

The definition is objective, not subjective, and people with a disability may not personally recognise that their particular condition is a disability, especially where it does not affect their ability to do things. For example, because it is a ‘disfigurement’ serious scarring can be a disability under this definition, even if its impact is only visual.

In other cases, although the person with a particular condition may not regard that condition as a disability, it can affect the way they are perceived by people around them and the behaviour of those people toward that individual.

In many cases, disabilities are not obvious or even visible to other people. People with these ‘hidden’ conditions may experience difficulty in convincing other people that they have a disability at all, but that does not mean that it is not real, or that it does not affect their daily lives.

This definition of disability is used in the APS for the development of recruitment and retention strategies. However, because it is difficult to operationalise at the practical process of data collection, a different definition of disability, used by the Australian Bureau of Statistics (ABS), is used to collect data and statistics from APS employees to monitor and assess the performance of the APS in relation to the employment of people with disability. For more detail on this issue, see 'What questions can I ask someone about their disability?'.

Janet’s story

For years Janet had been dealing with a spinal injury to her lower back that left her in chronic pain and often unable to work full time hours. Her condition had meant also that she tended to take a lot of sick leave. As a result she often had trouble keeping up-to-date with developments in her work. Limitations on her capacity to type as a consequence of the injury also meant, she thinks, that people tended not to see what other skills she had to offer and didn’t understand the contribution she could make.

Ironically, things got worse for Janet before they got better. An accident in a lift at work gave her a new spinal injury in her neck and aggravated her lower back problem. Her employer put in place a structured rehabilitation programme, appointing a rehabilitation officer who worked with the employer’s case manager, treating doctor, and workplace to develop a solution that included:

a proper ergonomic assessment of her workstation and the provision of appropriate equipment
the provision of voice-activated software to help deal with her reduced capacity to use a keyboard
allowing her to work reduced hours to help manage her pain.

Now Janet says that she feels that she is a respected and valued member of her team, and enjoys the work she does. At the same time, her team members have become more aware of the fact that different people have different needs and, of course, have the benefit of working with someone who's happy not to be in constant pain.

Chronic back injuries are among the most common forms of disability in the Australian community. Even so, many people in the community don’t understand this or often believe that back injuries are somehow ‘not real’, that people with them are just looking for a hand-out.

Janet’s case gives the lie to such preconceptions. Throughout all the difficulties she has kept working, and with the assistance of her employer is now making the contribution she was always capable of.

Discrimination in employment

The Public Service Act 1999 specifically prohibits discrimination in the workplace (section 10(1)(c)) and requires all APS employees to comply with applicable Australian laws (section 13(4)), including the DD Act.

The DD Act prohibits both direct and indirect discrimination on the basis of disability.

Direct discrimination occurs when a person is treated differently from others specifically because they have a disability, for example where a person is denied the opportunity to work for an agency because that agency only hires ‘able-bodied people’.

Indirect discrimination occurs when treating people with disability in the same way as everyone else results in an unfair disadvantage to them. For example, expecting all employees to climb a small step to get into their workplace would be satisfactory for most employees, but may mean that employees in wheelchairs can’t even get into the building.

Employees (and prospective employees) with disability are entitled to be treated fairly and without discrimination. At the same time, employers have a right to be confident that their employees, with or without disability, are able to perform the tasks for which they have been selected and for which they are paid.

The DD Act reflects this balance.

In relation to employees the fundamental question it asks of employers is: can the employee perform the inherent requirements of the job, with reasonable adjustments where necessary and where these adjustments do not cause unjustifiable hardship? If the answer to this question is yes, then it is unlawful to discriminate against that person in relation to their engagement⁶ or dismissal.

The terms ‘reasonable adjustment’, ‘inherent requirements’, and ‘unjustifiable hardship’ are discussed in more detail in the following material. In each case, however, it is important to remember that they are objective tests. The question is always whether in the case being considered a reasonable person would think the adjustment was unreasonable or would cause unjustifiable hardship, or the person could meet the inherent requirements of the position; not whether the particular employer or employee thinks that this is so.

Like most other decisions relating to employment in the APS, it is also a question that attracts common law rights of procedural fairness about how the decision is to be made. Decisions should be made transparently and impartially, and the employee (or prospective employee) given the right to comment on any material that is adverse to their interests.

What are ‘inherent requirements’?

The DD Act does not make it unlawful to dismiss, refuse to employ, transfer or promote a person who cannot perform the inherent requirements of a position. The Human Rights and Equal Opportunity Commission (HREOC) has also stated its view that this extends to not prohibiting ‘inquiries, examinations or actions which are reasonably intended for the purpose of determining a person’s ability to perform the inherent requirements of the relevant job.’

Defining the ‘inherent requirements’ of a position will always be a matter of careful judgement for an employer to make. The relevant factors may include, for example:

the work required in practice to be performed—if the job in practice does not require a particular duty to be performed, or if it is not being performed by other employees in similar roles, it may not be an inherent requirement even if it is shown on a duty statement
the importance or urgency of a particular task—duties that might need to be performed in an emergency might form part of the ‘inherent requirements’ of a position even if they are not shown on the duty statement or have not been previously performed
the circumstances in which a job is to be performed—the ‘inherent requirements’ in one set of circumstances may not apply in another, even if the duties are very similar
mandatory qualifications or other prescribed standards required for the performance of a function.

In defining the inherent requirements of a job it is useful to think about the results that need to be achieved—what needs to be done—rather than focusing on particular methods of achieving results. How the result is achieved is less likely to be an inherent requirement, and more likely to be subject to reasonable adjustment, where this is possible without unjustifiable hardship.

In making a decision about whether a person can meet the inherent requirements of a position, with reasonable adjustments being made, an employer may wish to seek the assistance of specialist medical or expert opinion. The person may also wish to provide evidence of this kind.

In either case, the employer remains responsible for any decision they make about whether a person can meet the inherent requirements of the position. They must consider all the relevant evidence, including any medical opinion, and come to their own view.

Working safely

The capacity to meet the inherent requirements of a position is not limited to the ability to perform the duties. HREOC has recognised that meeting the reasonable occupational health and safety requirements of a position forms part of the inherent requirements.

This includes both the question of the employee working safely with other employees, and not exposing themselves to unreasonable risk. So, for example, in one case resolved by HREOC it was concluded that it was reasonable to insist that an employee wear a safety helmet even though the employee complained that, because of his disability, that caused him difficulty and discomfort.

Where this issue arises, an assessment of whether the employee can meet the inherent requirements of the position should be made bearing in mind the range of adjustments that might help to meet occupational health and safety requirements. This can include, for example, adjustments to facilities, equipment, practices or training.

What is ‘reasonable adjustment’?

The concept of reasonable adjustment—sometimes referred to as reasonable accommodation—reflects the understanding that people with disability can often perform the tasks of a position where adjustments are made to accommodate the effects of their disability.

Barry’s story

Some disabilities are hidden, or are relatively common medical conditions that many of us don’t think of as disabilities at all.

Barry was diagnosed a dozen years ago as having repetitive strain injury to his hands and wrists, which affected him not only at work but also in activities outside of work. This is a huge problem when, like Barry, you’re working as a lawyer in an APS agency, and can’t carry out your duties because they involve a lot of keyboard use.

Luckily, the general practitioner he consulted was experienced enough to recognise the problem straightaway and also had some experience in what could be done to overcome it. The general practitioner told him to approach his employer to provide him with technological and other assistance to try and deal with this problem and to allow him to carry on with his work.

The solution in this case has been to use voice-recognition software, Dragon NaturallySpeaking, which has allowed him to keep working. In Barry’s case, the new hardware and software that he was supplied with was funded from a central budget maintained in his agency rather than from his branch’s budget.

Dragon NaturallySpeaking has worked very well for me and I would not be able to do my current job without it as I would not be able to manually type all the documents/produce all the text work which I need to do as part of my current job.

Being able to use this software means that Barry can keep working productively without depending on other staff for help.

There is no exhaustive list of what kinds of changes can be made. There are many different types of disability, and they affect people in highly individual ways. Technologies available to assist people with disability are constantly changing. Each case will need to be considered on its own merits and it is usually helpful to consult with the employee about the types of adjustment they have found to be most helpful.

Employers are also free to seek advice about reasonable adjustment from other expert sources. A starting list of possible sources of information is included in this toolkit at Places to go for information. Notwithstanding the advice provided by such expert sources, or by the employee, the final decision on what type of adjustment should be provided rests with the employer: employers are not bound to accept one form of advice over another and must exercise their own judgement. The first question is whether it works, that is, whether it allows that employee to perform the inherent requirements of the position.

Often adjustments made to meet the needs of people with disability will also be beneficial for other employees. Better access to buildings, more functional software, and flexible employment conditions are just some examples. At the same time, the need for ad hoc reasonable adjustment is often reduced by proper systems, policies and infrastructure in the first place.

Most employees with disability will require no type of adjustment at all. In other cases, the most important type of adjustment will be training to influence the attitude of colleagues about the ability of the employee with disability.

Reasonable adjustment is a broad term. Although it applies to changes that allow employees to perform their duties, it also applies to changes that allow employees with disability an equal opportunity to be considered for transfer, promotion, training or other employment opportunities, and allow them to participate in work-related facilities or programmes.

Common types of reasonable adjustment include:

adjustments to the workplace, equipment or facilities, including provision of additional equipment or facilities, e.g. the provision of voice-activated software or designing common kitchen facilities so that they can be used by someone in a wheelchair
adjustments to work-related communications including the form or format in which information is available, such as providing documents in an electronic format
adjustments to work methods i.e. a change to the way that a task is done, e.g. a person with a mobility impairment might prefer to participate in meetings by video or teleconference rather than travel a long distance to be there in person
adjustments to work arrangements, including in relation to hours of work—e.g. part-time work or the use of flextime arrangements—and use of leave entitlements
providing training to co-workers or supervisors to influence their attitude to co-workers with disability or, at a more general level, to improve their awareness of disability issues in the workplace
adjustments to methods used for assessment or selection (this is discussed in more detail in Part 2 of this kit)
access to development opportunities to demonstrate or develop capacity in a position
provision of interpreters, readers, attendants or other work related assistance
permitting or facilitating a person with disability to use their own equipment, such as a document reader, or assistance provided by another person or organisation
changes to the duties of the position, usually at the margin, that do not affect the inherent requirements of that position. For example, a person working in a job providing administrative support, whose role involved occasional courier duties might, because of their disability, not hold a driving licence. In that case, a reasonable adjustment could be for that employee to swap that function with another employee and take on some other duty instead.

Further advice about adjustments and solutions that are available is set out in this toolkit, and is also available on-line using the JobAccess Workplace Adjustment Tool.⁷

Mike’s story

Mike’s story illustrates the point that it’s some times the small, less obvious things that need to be thought about carefully. Even where the immediate working environment for someone with a disability lets them get on with their work, that’s only part of the story. Work is about more than sitting at your desk, and a broad perspective about reasonable adjustment is necessary if people with disability are to enjoy the things that most employees take for granted.

Some years ago, Mike was diagnosed with Familial Spastic Paraparesis, a degenerative condition that causes progressive weakness and spasticity in the muscles in the lower body.

In 2001 Mike started in his current agency, using a walking stick to help his mobility. His manager organised disabled parking when he started employment. As time passed and his condition got more difficult, he needed an ergonomic chair and an adjustable desk, both of which were provided to him. By this stage he also had to use a walking frame for mobility and, as time passed, he had to start using a wheelchair.

Things became a little more complicated, especially when he moved to a new office.

The conditions at the new location were less than satisfactory. As Mike describes it:

The deep pile carpet was lovely to walk on but like trying to push through sand in a wheelchair; the disabled toilet had no hand rails, no soap and no towels.

The hot water tap was too high to reach from a sitting position. This resulted in having to request someone to make me a cup of tea after I scalded myself trying.

The doors were difficult to open as they were heavy and required me to hold the handle and try to propel myself backwards to open the door then negotiate past the door before it closed on me.

Some of these things were addressed by moving Mike to another floor that had been partially modified for another employee in a wheelchair.

After about five months Mike was moved again. The new location had no disabled toilets on his floor which meant that he would have had to go outside to the car park for toilet facilities. After he objected to this Mike was moved to the floor above the rest of his team which, inevitably, meant that he tended not to be included in team discussions even where they affected him directly.

When he had to attend meetings he sometimes found that the toilet facilities were locked, or that the designated disabled toilet was not wheelchair accessible (the doorway was not wide enough) or the hand rail was broken or the toilet facilities were down stairs with no lift facilities.

While Mike’s situation is still not satisfactory he’s hopeful that it will be addressed properly in the new building that his agency is developing. He has been asked to participate on its access study—looking at ways to improve access to the building and its facilities by people with disability—including the:

design of hot water taps and other tap handles
location of card readers on automatic doors
size of disabled car parks to allow proper wheelchair access
design of cupboards to allow wheelchair access to sinks to do washing up.

One of the other things he’s found is that many people, including his employer, aren’t aware of the other supports that are available to assist employees with disability.

It was by sheer luck that I found out about the mobility allowance⁸ that supports people with disability in their employment and who can’t use public transport easily. The same is true for the GST exemption that I get on car parts and purchase.⁹ Hardly anyone seems to know about these and I wish they were publicised better.

What is ‘unjustifiable hardship’?

In deciding whether a type of reasonable adjustment would cause unjustifiable hardship, section 11 of the DD Act requires the employer to consider all of the relevant circumstances of the particular case including:

the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned
the effect of the disability of a person concerned, that is, its impact on the specific person with the disability in those specific circumstances
the financial circumstances and the estimated amount of expenditure required to be made by the agency claiming unjustifiable hardship.

The ‘benefit or detriment’ is not limited to financial costs or benefits: it can also include matters like occupational health and safety impacts, or the capacity of the employer to comply with the provisions of other relevant laws, standards, or agreements.

In some circumstances, APS agencies can apply for reimbursement of modification expenses associated with the:

engagement of new employees with disability
changes to the employment of existing employees with disability
change in the disability of an employee, or
introduction of new assistive technology

under the Workplace Modifications Scheme.¹⁰

Funding to support Deaf employees who require Auslan interpreting is also available under the Auslan Employment Programme.¹¹

Establishing that a particular modification will cause unjustifiable hardship will always be a matter of circumstances, but HREOC have indicated that it is likely to be a difficult test to satisfy in APS agencies given that the objects of the DD Act include the removal, as far as possible, of discrimination against people with disability in employment.

6 The assumption here is that that person is also otherwise the most strongly ranked candidate arising from an open, competitive selection process.

7 http://www.jobaccess.gov.au/JOAC/Advice/Search

8 http://www.centrelink.gov.au/internet/internet.nsf/payments/mobility.htm

9 http://www.ato.gov.au/individuals/content.asp?doc=/content/13098.htm&pc=001/002/060/001/002&mnu=&mfp=&st=&cy=1

10 http://www.jobaccess.gov.au/JOAC/Employers/Employer+incentives/Workplace_Modifications_S.htm

11 http://www.jobaccess.gov.au/JOAC/News/New_AFE_Programme.htm