23 July 2015
Earlier this month, in Huntley v State of New South Wales, Department of Police and Justice (Corrective Services NSW)  FCCA 1827 (“Huntley”), the Federal Circuit Court ordered a New South Wales government agency to pay a former employee over $180,000 after it was found that the agency had failed to make “reasonable adjustments” to accommodate the employee after she was diagnosed with Crohn’s disease.
The case draws attention to important issues for employers: what are “reasonable adjustments”, and when are employers required to make them?
What are “reasonable adjustments”?
Under the Disability Discrimination Act 1992 (Cth), an employer must consider:
- what reasonable adjustments it can make to ensure employees with disabilities are not treated less favourably than employees without disabilities; and
- whether making reasonable adjustments would enable an employee with a disability to comply with a usual requirement or condition of their job.
An adjustment will be seen as reasonable if it does not impose “unjustifiable hardship” on an employer. Whether this is so will depend on several factors, including:
- what benefit or detriment will result to any person if the adjustment is or is not made; and
- the financial circumstances of the employer.
In Huntley, the agency terminated the employee’s employment partly because it determined she could not drive for periods of longer than thirty minutes as required by her role. In doing so, it failed to properly consider medical advice that said the employee could drive for longer than thirty minutes if she took rest breaks. In failing to consider rest breaks as an option, the agency failed to make reasonable adjustments and therefore unlawfully discriminated against the employee.
Whether an adjustment is reasonable will always depend on the particular circumstances of the employment. However, other examples may include:
- allowing an employee some flexibility in working hours;
- relocating an employee’s office to a more accessible location;
- providing additional training; or
- devising alternate performance measures so employees with certain disabilities can demonstrate their ability to do the job.