The “inherent requirements defence” under anti-discrimination legislation and the Fair Work Act: A checklist for employers

Workplace Relations - 1 December 2017

Summary

This article focuses on learnings from a recent decision of the Federal Court of Australia, where the Court held that a decision-maker’s genuinely held (but probably mistaken) belief that a candidate for employment was unable to perform the inherent requirements of the position because of their disability was not unlawful adverse action taken because of the candidate’s disability under the Fair Work Act 2009 (Cth) (Fair Work Act) because of the “inherent requirements defence”.1

The Court was satisfied that there was sufficient evidence of the decision-maker’s belief, and that it was genuinely held, to enable the employer to rely on the “inherent requirements defence”, despite there being medical evidence which established that the candidate was not suffering symptoms and his injuries would not pose a greater risk of injury to himself or his colleagues.  Had the applicant’s claim been brought under the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act), the outcome would likely have been quite different.

The decision highlights the differences between how the “inherent requirements defence” operates under the Fair Work Act and anti-discrimination legislation.  It is critical for employers to understand these subtle yet important differences between the statutory regimes in order to prevent such claims being made, and ensure that they place themselves in the best position to defend such claims where necessary.

Quick links

The difference between the defences - same same, but different

The key difference between the two defences is the intention of the decision-maker and the evidence required. 

  • Under the Disability Discrimination Act, the inherent requirement defence requires the employer to establish that the disability would prevent the individual from performing the inherent requirements of the position. It also requires consideration of whether the individual could perform the inherent requirements if “reasonable adjustments” were made to the position. 
  • Under the Fair Work Act, the inherent requirements defence is concerned with the employer’s reason for taking discriminatory action.  It is not necessary for the employer to establish that the employee is unable to perform the inherent requirements of the position – only that the employer’s genuine reason for taking the adverse action was because of the inherent requirements of the position.  Furthermore, it is not necessary to have regard to “reasonable adjustments” to the position.

 
When will the inherent requirements of a position allow an employer to discriminate against a prospective employee with a disability?

Under the Fair Work Act 

Section 351 of the Fair Work Act prohibits an employer from taking adverse action against an employee or prospective employee because of the employee's disability; unless the employer can show that the adverse action (for example, refusing to offer a candidate employment in the position for which they have applied) was taken because of the inherent requirements of the particular position concerned.2 

This means that it is permissible for an employer not to offer employment to a prospective employee with a disability if the employer can show that this decision was made because of the employer’s genuine belief that the candidate would be unable to perform the inherent requirements of the position. This defence applies even if the employer's belief is mistaken, and the candidate would in fact have been able to perform the inherent requirements of the position. This is because the focus of the adverse action provisions under the Fair Work Act is on the actual reasons for taking adverse action.                                                                    

Under the Disability Discrimination Act 

By contrast, in order to rely on the “inherent requirement defence” under the Disability Discrimination Act, an employer must establish that the employee’s/candidate’s disability would in fact preclude the employee/candidate from performing the inherent requirements of the position, in order to defend itself from a claim of disability discrimination. The employer's subjective views about a candidate's ability to perform the inherent requirements of a role are irrelevant – rather, the focus is on whether the employee/candidate is objectively able to carry out the inherent requirements of the position.  In such circumstances, medical evidence about the nature of the employee’s/candidate’s disability as it relates to the particular tasks of the role will generally be required.

Employer's checklist regarding the 'inherent requirement defence'

  • Make sure you understand the differing legal requirements regarding the “inherent requirements defence” under the Fair Work Act and anti-discrimination legislation, and keep these in mind when managing your equal opportunity obligations. 
  • Review and document the inherent requirements of a role prior to commencing recruitment processes and where possible, avoid making “provisional” or “conditional” offers of employment subject to a medical assessment.
  • Always be clear who the decision-maker is and ensure that the decision-maker gives direct evidence at any hearing of an adverse action claim to establish the actual reasons for any action. If a respondent employer fails to lead direct evidence from the decision-maker, it will be extremely difficult to discharge the reverse onus under the adverse action provisions of the Fair Work Act.
  • Where you consider an issue of discrimination may arise, particular care should be given to ensuring that all decisions are properly documented and address the different considerations arising under the different legislation. In particular, to minimise the risk of a successful discrimination claim under the Disability Discrimination Act, employers should ensure they have proper evidence to support a decision that a candidate with a disability cannot meet the inherent requirements of the position before refusing an application for employment on this basis. 

 

Case study: Shizas v Commissioner of Police


Background

In 2012, Mr Shizas applied to join the Australian Federal Police (AFP) as an Agent Based Officer.  Mr Shivas received a conditional offer of employment prior to the AFP becoming aware of his diagnosis with ankylosing spondylitis (a form of arthritis that causes inflammation in the spine and other joints).  Mr Shizas’ application for employment was subsequently rejected on the basis that he did not meet the AFP's medical clearance requirements.

 Mr Shizas brought proceedings alleging that the AFP contravened section 351 of the Fair Work Act by taking adverse action against him when it:

  • revoked its conditional offer of employment in March 2013 on the basis that Mr Shizas did not meet the AFP’s medical requirements, despite a letter from his rheumatologist advising that there was no restriction on Mr Shizas’ ability to carry out the job requirements (First Decision); and
  • notified Mr Shizas in July 2014 that the AFP would not revoke its decision to refuse his application for employment, following independent medical advice which the AFP had obtained after Mr Shizas had made a discrimination complaint to the Australian Human Rights Commission under the Disability Discrimination Act (Second Decision).  This medical advice indicated that Mr Shizas’ disability meant he would have a substantially higher risk of injury in performing the role, and that any injuries sustained would be likely to be more serious than they would be for an individual without his disability.

Mr Shizas alleged that the First and Second Decision amounted to adverse action which was taken for an unlawful reason, in that the decision was made because of his ankylosing spondylitis, which is a physical disability within the meaning of the Fair Work Act.

Mr Shizas sought declaratory relief and orders that the AFP appoint him to the position for which he applied. He also sought orders restraining the AFP from continuing to treat his ankylosing spondylitis as grounds for his exclusion under the AFP's medical standards.

The Court's decision

The key question to be decided by the Court was whether the AFP refused to employ Mr Shizas because of his disability, or whether it could establish that its refusal was because of Mr Shizas’ inability to perform the inherent requirements of the position.  Due to the reverse onus nature of the adverse action provisions, the burden was on the AFP to displace the presumption that it refused to employ Mr Shizas for this reason or reasons that included the reason of his disability.

In relation to the First Decision, the Court held that the AFP had failed to lead evidence as to who had made the decision to reject Mr Shizas’ application for employment in March 2013.  Without evidence from the decision-maker, the presumption that the AFP’s decision to refuse Mr Shizas’ employment had been made because of Mr Shizas’ disability could not be displaced.  Furthermore, the AFP could not establish that the decision was made because of the inherent requirements of the position, and therefore could not rely on the “inherent requirements defence”.  Accordingly, the Court found that the AFP was in breach of the Fair Work Act in respect of the First Decision.

In relation to the Second Decision, it was clear that the decision had been made by the Assistant Police Commissioner of the AFP.  Therefore, the Court had to determine whether the reason/s for the decision was/included:

  • Mr Shizas' disability (which would be unlawful adverse action); or
  • Mr Shizas' inability to perform the inherent requirements of the position of Agent Based Officer.

The medical evidence before the Court established that Mr Shizas was in fact not currently suffering symptoms, and his disability would not create a greater risk of injury to him or his colleagues if he was employed in the position of Agent Based Officer.

However, the Court accepted the evidence given on behalf of the AFP that when making the Second Decision, the Assistant Commissioner had genuinely believed that Mr Shizas could not satisfy the inherent requirements of the position based on the independent medical evidence he had reviewed, even though this belief may have been incorrect.  

In these circumstances, the reason for the adverse action in refusing Mr Shizas’ application for employment was not Mr Shizas' disability, but rather the Assistant Commissioner’s concern that Mr Shizas could not safely perform the inherent requirements of the role.

The Court held that under section 351 of the Fair Work Act, the AFP was not required to prove that Mr Shizas did not meet the inherent requirements of the position in order to rely on the “inherent requirements defence”, as would have been the case if the claim was made under the Disability Discrimination Act.  Rather, the AFP was only required to prove that the adverse action was taken “because of” the inherent requirements.

Interestingly, her Honour Justice Katzmann noted that where the medical evidence suggests that the prospective employee satisfies the inherent requirements of the particular position, it may support an inference that the decision was taken for an unlawful reason (being the candidate’s disability), despite an employer’s assertion that they were motivated by concerns about the candidate’s ability to perform the inherent requirements of the position.  However, the Court did not draw that inference in this case, and accepted that the Assistant Commissioner’s belief was genuinely held.  The Court considered that the fact that the AFP had sought and relied on independent medical evidence in making the Second Decision “tells against the notion that [the AFP] acted on the basis of a preconception rather than [the] actual circumstances”.

To discuss this topic further please contact a member of our Workplace Relations and Safety team.

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Further information


1 Shizas v Commissioner of Police [2017] FCA 16 (Shizas)

2 In Shizas, the AFP submitted that because section 351 of the Fair Work Act only refers to “employers”, it does not apply to prospective employers.  Taking into account the ordinary meaning of the term “employer”, and the text and context of the provision, the Court rejected this submission and held that section 351 applies to both prospective and actual employers.      

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