When does protecting against a serious health risk become discrimination?
The Federal Court of Australia (the Court) recently found that the Australian Taxation Officer (the ATO) discriminated against an employee on the basis of his disability when it withdrew a job offer made to him after discovering that he suffered from hypertension.
The Facts
The Employee applied for a position with the ATO as a GST Compliance Officer. The ATO made him an offer of employment subject to, amongst other things, his fitness for work. If he were found to be unfit for employment, the offer would be withdrawn and his employment terminated.
He commenced work with the ATO. Soon after, the ATO withdrew the offer upon receiving the results of the Employee’s medical assessment, which revealed a blood pressure reading of 200/110. When reassessed three weeks later, the reading was 200/125.
Based on the medical assessment that the Employee was suffering from hypertension (he also weighed almost 140kg), the ATO withdrew its offer of employment, stating that the Employee would not be able to fulfil the inherent requirements of his job.
The Employee claimed that he had been subject to discrimination in employment contrary to Section 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (the Act), which deems it unlawful for an employer to discriminate against an employee on the ground of the employee’s disability by dismissing the employee.
The ATO relied on the defence contained in the Act that one of the inherent requirements of the Employee’s employment was extensive driving and, to carry out those requirements, the Employee would require services or facilities which would impose an unjustifiable hardship on the ATO.
The Decision
The Court held that the ATO had withdrawn the Employee’s offer of employment because of his imputed disability of hypertension, and thus discriminated against him contrary to the Act.
The Court found that the blood pressure readings given during the Employee’s medical assessments were not his true blood pressure, as he suffered from “white coat syndrome” and experienced increased levels of anxiety while undergoing medical tests, which had increased his blood pressure during the examination.
As a result, the Court found that the ATO had “imputed” a disability of hypertension when in fact the Employee’s blood pressure could be controlled by medication.
The Court decided that reinstatement was not an option, and awarded damages of almost $122,000 to the Employee. This included damages for loss of income, mental anguish and interest.
Implications for Employers
This case highlights the importance of employers ensuring that adequate and accurate medical assessments are undertaken prior to a worker’s commencement of employment.
Employers must show that they will suffer significant unjustifiable hardship if they accommodate a worker with a disability. Such hardship must include significant cost to the employer above what would normally be required for other workers.
It should also be noted that employers owe a duty under Section 19 of the Occupational Health Safety and Welfare Act 1986 (SA) to ensure that they maintain a safe working environment for all workers. This may include ensuring that workers with disabilities do not compromise their safety or that of other workers.
Any policies and requirements relating to the medical assessments of workers should be handled carefully and we encourage all employers to seek business specific advice before embarking on such a process.
For further information about issues covered in this article, please contact Belinda Richards on 8217 1337 or email brichards@normans.com.au.
