Employers face an increase in disability discrimination claims as wo…

Employers face an increase in disability discrimination claims as workers hit by falling workplace and personal injury pay outs seek a new form of legal compensation, according to a leading employment lawyer.

“Most people who sustain a major physical or psychological injury experience some problem in returning to the workforce”, said Allens Arthur Robinson workplace relations lawyer, Peter Arthur. “Increasingly, these problems see employers facing legal action and compensation claims.”

Under current Federal law, disability discrimination pay outs are uncapped, making it an attractive legal avenue for workers facing increasingly restricted personal injury or workers compensation pay outs.
“While no disability discrimination awards to date have been over the $100,000 mark, the tribunals have found in favour of the vast majority of claimants,” said Mr Arthur.
The latest Human Rights and Equal Opportunity Commission figures show that disability claims are up by nine percent in the last year despite an overall decrease in sex and race discrimination cases in the last four years.

Australia’s biggest employer group, the Australian Chamber of Commerce and Industry, have already expressed concerns about employers facing an upsurge in “stress related” compensation claims.

“Cultural change and education programs have greatly reduced sex and race discrimination in most reputable organisations. Disability discrimination is much harder to prevent in a workplace because it can take such a wide variety of forms. It can be found in any number of the judgements that we make every day about other people,” said Mr Arthur.
He cited the example of a manager who suffered a head injury in a car accident, underwent a mild personality change and became highly aggressive and moody with the staff he managed upon returning to the workplace.

“Under current law, there’s a strong case that asking this manager to leave his job or reassigning him to another role would constitute disability discrimination. Instead, the employer has to counsel the staff about how to deal with their manager’s new temper and moods,” said Mr Arthur.

Other high profile disability discrimination cases in the last 12 months include:

• a council worker who sued his boss for discriminating against him at work because he was dependent on methadone. The tribunal ruled that methadone addiction is a disability;
• a one-eyed fireman was awarded $10,000 after not being considered for training and promotion. This was despite the tribunal acknowledging that monocular vision meant he could not fulfil the role with the appropriate level of safety; and
• a teacher commencing proceedings against his school claiming he was discriminated against because he had a stutter which parents and pupils said made him hard to understand.
“Given the availability of uncapped damages and a very extensive definition of “disability” in the legislation, there is likely to be further substantial growth in disability claims. Over time these are going to present employers and public bodies with a real problem,” said Mr Arthur
The High Court of Australia had recently outlined a restrictive legal test for disability discrimination but it has yet to be seen whether this will have any discernible effect on the number of cases being pursued.

Notes for Editors:
Allens Arthur Robinson has more than 1600 staff working in 10 offices throughout the Asia Pacific.
In 2001, Allens Arthur Robinson and UK-based Slaughter and May entered into a “best friends” relationship in the non-Japan Asia Pacific region.

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