Indirect Disability Discrimination – Disability extends to behaviour that is a symptom or manifestation of a disability23 October 2018 Topics: Workplace relations and safety
While the Victorian Court of Appeal rejected a worker’s claim of direct discrimination, a finding of indirect discrimination by the Victorian Civil and Administrative Tribunal remains.
Mr Ferris worked as a store supervisor at a low security prison from May 2009 until he was suspended in July 2014 and his employment was terminated in May 2015. Mr Ferris suffers from type 2 diabetes and claimed that his suspension and termination were due to his disability.
Mr Ferris was dismissed for misconduct after his State government employer found he aggressively swore at a prisoner, failed to comply with a superior’s direction that he not speak in that manner and failed to properly account for money he received in the course of his duties. Mr Ferris subsequently claimed that the employer discriminated against him by imposing unreasonable working conditions, thereby exacerbating his type 2 diabetes. Mr Ferris relied on expert endocrinologist evidence to support his contention that elevated blood sugar levels could cause irritability, short temperedness and swearing and claimed that the employer discriminated against him when it dismissed him because the acts of misconduct it relied upon were ‘manifestations’ of his disability.
The Tribunal found that the department had indirectly discriminated against Mr Ferris on the basis of his diabetes because a large increase in the number of prisoners led to an increased workload, requiring Mr Ferris to work unreasonable hours and preventing him from properly managing his diabetes.
Conversely, the Tribunal rejected Mr Ferris’ claim of direct discrimination. Ultimately, the Tribunal found that there was a lack of direct evidence of the requisite causal connection between Mr Ferris’ diabetes and his suspension and termination to support a finding of direct discrimination concluding that there was ‘absolutely no evidence to support any suggestion that Mr Ferris was suspended or dismissed because of his condition of diabetes’.
On appeal, Mr Ferris submitted that the Tribunal failed to consider his submissions about his dismissal and erroneously concluded that there was ‘absolutely no evidence’ that his dismissal was due to his diabetes.
The Court of Appeal held that there was no error in the Tribunal’s approach in rejecting Mr Ferris’ claim that his dismissal constituted direct discrimination. The Court of Appeal held that in order to establish his claim of direct discrimination, Mr Ferris had to prove that his diabetes was at least a substantial reason for his suspension or dismissal. In dismissing Mr Ferris’ appeal, the Court of Appeal held that the evidence submitted by Mr Ferris, including that of an endocrinologist, was ‘far too speculative’ to satisfy the causal connection and therefore failed to convince the Court that Mr Ferris’ grounds for dismissal were manifestations of his diabetes.
Employers should be aware that where they have knowledge of the disability of an employee, and no innocent explanation exists or is accepted for the employee being treated less favourably, it may be possible for the employee to argue that the less favourable treatment was as a result of the disability.
Importantly, a finding of indirect discrimination was still upheld. The finding of indirect discrimination related to the requirement that Mr Ferris work unreasonable hours. The requirement to work unreasonable hours disadvantaged Mr Ferris as a diabetic because it prevented him from properly managing his diabetes thus causing his condition to become unstable.