Can employers discriminate against ADHD?
We were asked to prepare answers to the following questions for NeuroWorks. It might be useful for anyone with a disability.
1. If an employee has disclosed their ADHD and they believe that their employer (or the general workplace colleagues) have engaged in discrimination, what are their options? Do they lodge a complaint with the Fair Work Commission, their state anti-discrimination board or a mixture of both?
Broadly speaking, there are four options available for an employee and they must elect one.
First, an employee can bring a general protections application to the Fair Work Commission, if they have been dismissed or in the course of their employment. This claim can be made if adverse action has been taken against an employee because they have a prescribed attribute (including a mental or physical disability) or they have exercised a workplace right (for example – asking for a flexible work arrangement to accommodate their ADHD). If you have been dismissed, you have 21 days from the date the dismissal was effective to lodge your application. The complaint will then be conciliated by a member of the FWC. If it does not successfully resolve at this stage, the claim can continue to the jurisdiction of the Federal Court. Here, the Federal Court can make an order for economic loss, general damages and breaches of the Fair Work Act.
A benefit in commencing before the FWC is that the application will be conciliated more quickly than in the Australian Human Rights Commission. A con is that it may not be dealt with as sensitively or with the same expertise.
Workplace bullying is when a worker or group of workers repeatedly behaves unreasonably towards another worker, causing a risk to their health and safety. If the discrimination amounts to workplace bullying and your employment is ongoing, you can commence a stop-bullying application before the FWC. It is a good option where you just want the conduct to stop and to continue working.
An employee can make a complaint to the Australian Human Rights Commission for discrimination captured by Federal anti-discrimination legislation. An employee must do this within 6 months of the discrimination having taken place. This can be discrimination that has been undertaken directly or indirectly. The complaint will be conciliated, and if unsuccessful can proceed to the Federal Court where compensation (including general and aggravated damages) can be awarded.
An employee can make a complaint to their state based anti-discrimination board or organisation. Organisations and legislation will differ from state to state (including caps on compensation) and employees must keep an eye on any applicable cutoffs. For applicants in NSW for example, they have 12 months to lodge their complaint. The complaint will be conciliated, and if unsuccessful, may be heard by an expert panel or tribunal who will hand down a decision about your complaint.
An employee who believes they have been discriminated against should seek legal advice before making a claim in order to understand the pros and cons of each option, and the strength of their claim. You must make an election as to which claim you wish to pursue. An employment lawyer will be able to give you assistance in preparing your application and providing representation throughout the process.
A useful resource from the AHRC about laws across Australia.
2. If they must approach a lawyer, what are their free or paid options to get legal advice and what do they need to prepare for that consultation?
There are a number of free or paid options to access legal advice.
Pro-bono assistance will vary from state to state, but some good places to start include:
- Legal Aid;
- Your local CLC;
- Specialised CLCs such as the Australian Centre for Disability Law, and state based CLCs such as the Disability Discrimination Legal service.
While pro-bono assistance is a good first step, many places will be limited in the ongoing assistance they can provide. You should enquire as to any recommendations they have for paid representations. You can also enquire with friends and family to see if anyone has a recommendation, or with your state’s Law Society for a referral to a law firm practising in discrimination law. Resolution123 provides quick, simple and affordable employment law advice for an upfront fixed fee.
Each organisation will have their own intake and processes. However, you can best prepare to speak to a lawyer by taking the following steps:
- Write a timeline of what has happened to you, and why you believe it is discrimination. Make sure this is clear and you can understand it, including as many relevant facts as possible (dates, names, what was said).
- Collect any evidence you have of the discrimination including letters, emails and text messages. Collect any medical evidence you may have about the impact of what has happened.
- Find a trusted friend, relative or support person who can assist you with making enquiries to a lawyer if you need. Many law firms and organisations now have online facilities for you to make an enquiry.
When making contact with a law firm, it will be useful for you to disclose your disability and ask them to make any accommodations you need to make the legal process easier for you. You should also ensure you talk about the following:
- The costs associated with a lawyer representing;
- Compensation available to you;
- Any relevant timelines and cutoff dates.
3. How can employees legally request for workplace accommodations (such as headphones or a quiet space) from their manager? If a manager refuses their workplace accommodations, what action can someone take?
It is useful to have medical evidence that supports any request that is made. For example, a letter from your GP or treating doctor that discloses your disability and recommends the adjustment that needs to be made.
You should put your request to your manager in writing, and ask for a response within an agreed time frame, say 7-21 days. If you feel comfortable doing so, you can suggest having a conversation with them to further discuss your request if it is required, and should bring a support person with you to the meeting. If your manager has an understanding of the request and the impact it will have on your workplace, they can better assess your request.
If your request is denied, you should ask for a written response outlining the reasons why the adjustments cannot be made. You may also wish to ask for a follow up meeting where the denial can be discussed, and to see if any way forward can be agreed upon.
Any agreement for adjustments should be outlined in writing and understood by both the employee and employer.
If the adjustment is reasonable and it is denied, it may be in breach of the Disability Discrimination Act 1992 (Cth) (the Act). An employer has a duty to make a reasonable adjustment for an employee with a disability, unless making the adjustment would impose an unjustifiable hardship on the employer. It may also be in breach of other state based anti-discrimination legislation.
You will then be eligible to make a complaint to AHRC or relevant state based discrimination organisation.
Be prepared to compromise and consider a trial period.
If you feel you are left with no choice but to resign, seek legal advice. You may be protected from unfair dismissal or eligible to commence a general protections application. You have 21 days from the date the dismissal is effective.
4. Can someone request flexible working conditions (like adjusted working hours) when they start a new job or must they wait at least 12 months?
Yes, you can make a request for reasonable adjustments any time as outlined above.
In addition, the National Employment Standards (NES) apply to all employees in Australia. One of our rights under the NES is the right to request flexible working arrangements. However – not everyone can exercise this right. You must:
- Have completed 12 months service with your employer before you are entitled to request a flexible working arrangement;
- Be in one of the following circumstances:
- the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
- the employee is a carer;
- the employee has a disability;
- the employee is 55 or older;
- the employee is experiencing violence from a member of the employee’s family;
- the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
If you are covered by a modern award or an enterprise agreement, this may afford greater rights to flexible working arrangements on you. The FWO can assist you with determining if you are covered by an Award.
The request might include (but is not limited to) a change in working arrangements from full-time to part-time, changes in work hours, changes in patterns of work and changes in location of work.
Your request must be in writing and:
- Include the details of change you are after; and
- The reasons for change.
Your employer must respond within 21 days and they may refuse the request on reasonable business grounds. A non-exhaustive list of reasonable business grounds are provided by the Fair Work Act and include:
- that the arrangements would be too costly for the employer;
- that there is no capacity, or it would be impractical, to change the working arrangements of other employees to accommodate the request;
- that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
- that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service;
A refusal to accommodate flexible work may amount to adverse action taken against you, may constitute workplace bullying, or may be disability discrimination.
Please note it may be easier for an employer to dismiss a request for flexible work arrangements than a request for reasonable adjustments made with supporting medical evidence. This is due to the different test for refusal reasonable business grounds v unjustifiable hardship.
If you need assistance with disability discrimination please contact us on 1800 RES 123 or make an online enquiry here.