In this Bulletin we look at discrimination in the workplace – which also figures as a factor in stress related claims for employers.
There is legislation at both a State and Federal level which makes it unlawful to discriminate against people for a wide range of reasons including having a ‘disability’- the term ‘disability’ includes a condition where an employee is suffering from depression or anxiety.
Direct discrimination occurs when one employee is treated less favourably than another employee as a result of their disability. In this sense terminating a worker’s employment or limiting chances for promotion on the basis that they have a ‘disability’ as defined above when there are reasonable steps an employer can take to allow the employee to continue to work in the role or support opportunities for promotion would represent discrimination.
Indirect Discrimination exists where an employer imposes a requirement or condition that is not reasonable and is likely to have an adverse effect on a person with a disability for example staff are required to start work at 7.30am which may be difficult for an employee with a depressive condition and it would not be unreasonable for the employer to allow that worker to start later and finish later.
An employer must seriously consider options when attempting to act in the employee’s best interests as you can inadvertently unlawfully discriminate against an employee where you change an employee’s duties to alleviate stress and by doing so actually increase it, or giving an employee a formal warning about absenteeism when this is related to a depressive illness, or directing an employee to perform a duty as part of their job which they cannot do because they are suffering from a stress related condition or other impairment.
A clearly articulated and documented process for dealing with stress related claims needs to be established within your workplace and regularly reviewed – the process needs to include steps which:
a) Identify the risk – and act on the basis that all claims are genuine until proven otherwise.
b) Refer to your OHS policies and procedures to assist in resolving issues.
c) Check the past record of the complainant to establish any history such as previous complaints, records of absenteeism and previous medical claims.
d) Consider an ‘Employee Assistance Programme’ where you offer and pay for some independent formal counselling for the employee.
Where a stress related complaint leads to a Workers Compensation claim make sure you liaise with your insurer and provide relevant details and facts to them as to the events and issues specific to the claim. If an employee is being performance managed this is important information as it may limit the availability of compensation to the employee.
In general circumstances you cannot terminate a worker who is absent on approved Workers Compensation or who is submitting a Workers Compensation claim.
Where an employee is receiving weekly or fortnightly payments under your policy you will generally be required to hold the employee’s pre injury position open for the first 12 months they are receiving payments.
Reducing potential stress when a worker returns to their employment is important and the following factors should be considered:
- The genuine and reasonable requirements of the role;
- The employee’s ability to perform the pre injury role taking onto account all relevant factors and circumstances;
- The possibility of providing training, support or other services to assist the employee in performing their pre injury role, subject to costs and viability.
Such considerations would also need to consider the length of service of the employee as there would be far less emphasis for an employee of 12 months standing than one who has been with a Company for several years.
Remember that you should document all proceedings and actions that relate to a complaint of stress or a stress related condition.
Further questions? Call us to discuss your obligations.