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Caught out by a blank space

• 26 November 2017 • 3 min read
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Employers need to follow up information left blank in pre-employment forms

A Victorian government department has been found to have indirectly discriminated against an employee.

The Victorian Civil and Administrative Tribunal found that being required to work long hours exacerbated a medical condition, which he did not disclose in a pre-employment form he completed. It was a hollow victory for the employee however, with no orders being made for the remedies (compensation and an apology) sought by him.

What happened?

Mr Ferris, a prison Store Supervisor who suffers from diabetes and cardiomyopathy, claimed direct and indirect discrimination under the Victorian Equal Opportunity Act (2010) against his former employer, the Department of Justice and Regulation[1]. Judge Harbison of the Tribunal upheld the indirect discrimination claim, finding that the Department imposed a requirement that Mr Ferris work long hours following a significant increase in workload at the prison. Judge Harbison held that this requirement disadvantaged Mr Ferris as a diabetic because it exacerbated his diabetes due to the stress he experienced and because he was unable to appropriately manage his diabetes by taking breaks and regulating his diet, and was unreasonable in the circumstances.

This was despite the fact that Judge Harbison found there was no evidence suggesting Mr Ferris had told anyone that his working conditions were aggravating his diabetes, and that the Department had measures in place to address such situations if they were brought to its attention.

Judge Harbison confirmed that Mr Ferris did not need to prove the Department was aware of his disability in order for there to be indirect discrimination. It was held the finding of indirect discrimination was warranted because the Department did not follow up on Mr Ferris leaving blank the part of the pre-employment form that asked for details of any disabilities suffered by him that may impact on his work. Judge Harbison said that, had it done so, the Department would have been in a position to implement remedial procedures to avoid the discriminatory effect that the requirement had on a person with a disability.

Fortunately for the Department, no order for compensation was made because the Applicant had taken no steps to warn it of the effect the increased workload was having on his health.

What you need to think about

We think this decision places employees in an invidious position by effectively requiring an employer to:

  1. press individuals in the recruitment stage of their employment for sensitive personal information about medical conditions when they have elected not to provide that information; and
  1. think like a medical practitioner, by exploring every way in which a workplace requirement could impact a person with a possible but unknown medical condition, despite requesting information about it.

However, employers should think about how this scenario would play out in their organisation. This is because the EO Act makes it clear that in determining whether a person indirectly discriminates against another, it is irrelevant whether or not that person is aware of the discrimination.

The decision reminds employers to follow up information left blank in pre-employment forms so that if faced with an indirect discrimination claim down the track, the organisation can say it took steps to seek that information from the employee.

[1] Ferris v Department of Justice and Regulation [2017] VCAT 1771.

You may also be interested to read another article about the importance of obtaining medical information, It's not 'safe to assume' when managing employees.

Looking for advice on workplace issues?

Contact the Anti-Discrimination team.

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