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Don’t perpetuate the stigma

​Legal case: Disability discrimination

Published: 15 March 2017

Some illnesses and disabilities, such as epilepsy, tuberculosis, HIV/AIDS and mental illness, still carry a powerful stigma that can result in unlawful discrimination. Employers should not make assumptions about any illness or disability without full information, as a recent case in the NSW Civil and Administrative Tribunal illustrates.  

The facts​

An accountant with a large firm contracted tuberculosis of the cervical lymph nodes. When she was ready to return to work (with medical clearance), a human resources officer phoned her to suggest that she either take unpaid leave or resign. Under pressure, she took six weeks’ unpaid sick leave. She eventually returned to work with medical certificates stating that she was not contagious if her condition was properly treated. 

Nevertheless, she was given administrative duties and quarantined from the rest of staff while her employer carried out an extensive performance management process. This resulted in negative feedback about her attendance record. Prior to her illness, she was performing well and had been nominated for an award. This was not considered during the performance management process. 

She eventually complained within the organisation that she was feeling bullied and harassed to resign, but the complaint was not investigated. The HR Director told her that it would be ‘uncomfortable’ for her if she insisted on an investigation. It was again suggested that she could ‘transition out of employment’. She refused to sign a separation package but went on sick leave and was eventually admitted to a psychiatric hospital. 

Legal action for disability discrimination​

The accountant took action in the NSW Civil and Administrative Tribunal, claiming disability discrimination. An illness such as TB is classed as a disability under NSW law. The Tribunal accepted that the performance management process was designed to force the accountant to resign. The Partner and the HR Director both admitted that separation packages had previously only been offered to employees whose performance had been assessed as substandard. ​

The issue

The Tribunal had to consider whether or not the accountant was treated less favourably because of her disability than an employee in similar circumstances who did not have TB. Since the situation had never arisen, it used Deloitte’s own policies on managing sickness and on harassment and bullying as a hypothetical comparator.  

Decision

The Tribunal decided that an employee with similar skills and qualifications but without TB would not have been performance managed and pressured to resign. It found that this treatment was detrimental to the accountant’s sense of self, health and well-being, and she lost a considerable amount of money while on unpaid leave. The employer was motivated by a fear of infection, but took no action to check if the accountant’s type of TB was contagious.    

In calculating the amount of compensation, the Tribunal took into account the fact that the accountant had got a new, better paid job with another employer. She was awarded around $46,000 for economic and non- economic loss.

Choi v Deloitte Touche Tomatsu [2016] NSWCATAD 304 (22 December, 2016)  ​

Take away points

  • Do not make assumptions about the effect that an employee’s illness or disability will have on them or on others in the workplace.
  • If you are concerned that an illness or disability may pose a risk to health or safety, explain your concerns to the employee and ask them to provide appropriate medical information.
  • Subjecting someone to any detriment, loss or injury because of an illness or disability may amount to unlawful disability discrimination.
  • Consider whether any risks that are revealed can be eliminated by the provision of reasonable services or facilities (for example, allowing them to work from home). 
  • Make an informed decision once you have considered all the facts and given the employee an opportunity to respond to your concerns. 
  • Termination of employment should only be considered if there is a real risk to health and safety which cannot be eliminated without causing unjustifiable hardship to the employer.   

Back to March 2017 - Equal Times Newsletter​​​​​​

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