I have been concerned for a long time about the interaction between disability discrimination protections and an employer’s liability under workers compensation legislation.
Consider the hypothetical but common situation of a person who has been required to take time out of the workplace due to illness.
- Sarah has been out of the workplace for eighteen months following suffering major depressive disorder. She works in sales and resigned her previous position after becoming unwell.
- Sarah has now recovered and wishes to return to work.
- Sarah’s treating doctor consider a return to the workforce would be beneficial for Sarah’s recovery although any return to work will have to be carefully monitored as Sarah has a greater risk than the general population of becoming unwell.
- An employer wants to offer Sarah a role.
- The role Sarah is being considered for, like the vast majority of positions, has targets and deadlines which must be met to make the position viable.
In my view it would be better for inclusion overall if the decision facing the employer in this case was whether to give Sarah a go, knowing that if it didn’t work and Sarah became unwell there would be no long term legal consequences for the employer provided the employer acted fairly and appropriately throughout the employment. Unfortunately with the workers compensation law in its current form, that is not the case. If Sarah becomes unwell and makes a claim it could potentially impact the employer’s premiums and greatly limit the employer’s ability to terminate the employment relationship and place a new person in the position. There could also be substantial obligations relating to the need to find light duties for Sarah.
It is relevant to this issue that discrimination at the recruitment stage is the most difficult to detect and prevent. There are often a large number of applications for every position and the criteria used to assess who is offered a position are frequently highly subjective. If the employer decides to appoint someone other than Sarah to the role because of concerns about potential liability, it will be almost impossible for Sarah to prove that she has been the victim of unlawful discrimination. Legislating against disability discrimination will not be the only answer and we need to put in place sensible measures which prevent workers compensation laws stopping decent employers giving people a chance.
Possible way forward
I have given this issue much thought over my years in practice and I have seen this dilemma contribute to discrimination despite the best efforts of many employers.
My suggestion would apply where a worker has contracted an injury in the course of employment which is the same as or related to a pre-existing or past injury or illness. In such cases the injury will not be a worker’s compensable injury if, on the balance of probabilities, an expert medical practitioner considers that it is likely that the person would have suffered the injury or the exacerbation of the injury in another workplace performing a similar position. This would have significant application not only in relation to mental health conditions but also muscular injuries.
There are some exceptions currently in all workers compensation schemes in relation to exacerbation of pre-existing injuries and mental health conditions. The current schemes do not in my view fairly deal with the situation in which any employment (not matter how fair and reasonable) would have been the major contributing cause of the injury.
As an economy we need to increase workplace participation. As a society we need to be fairer to those with a disability. In my view, anything which prevents even decent and well run employers giving workers an opportunity, must be carefully reviewed.