Selection Savvy – how to avoid disability discrimination

Treating employees with a disability sensitively and fairly is an important responsibility for an employer. State and Commonwealth laws are in place to prevent people with disabilities from being discriminated against in the workplace.

One area in particular where employers can be at risk of making mistakes is recruitment.

In developing your recruitment processes, ensure you are not inadvertently discriminating against any applicant who may have a disability; in general, it is unlawful for an employer to ask an applicant for information that could be used to discriminate against them on the basis of their disability.

There are a few situations when it may be appropriate to ask about an employee’s disability. For example:

• It may be lawful if the information is required to ensure the health and safety of all workers, and all employees are asked to answer the same questions.
• The questions may be lawful if they are being asked to enable the employer to make adjustments to help the employee to do their job and to ensure they are not discriminated against.
• Questions about a disability may be permitted when the requested information is directly related to the inherent requirements of the position.

Employees have no legal obligation to disclose a disability, unless it impacts on their ability to perform the normal duties of the role.

If you ask an employee about any pre-existing injury or illness that might affect their ability to perform their duties, the employee is expected to disclose his or her disability. Failure to do so can affect their entitlements to workers’ compensation.

If you do need to ask about an employee’s disability, you must:

• tell the employee why you are asking for the information
• advise the employee of any consequences of not disclosing a pre-existing injury or illness (for example, they might miss out on workers’ compensation)
• allow the employee to access any information you record about their disability
• inform the employee of any other parties who will receive copies of the information you record and provide contact details for these parties.

It’s important to ensure that all those with people management and recruitment responsibilities are fully aware of your organisation’s policies on discrimination and fair recruitment processes.