Assumed disability discrimination – a tricky path to navigate

Key Points
  • Be careful before assuming someone is suffering from a mental illness
  • Investigate and ensure any action taken does not amount to a detriment
  • Obtain medical evidence as quickly as possible and take appropriate action based upon the medical evidence
  • Consider whether disciplinary action or performance management is an appropriate response to the behaviour

Picture this – you are an employer who employs caseworkers to work with vulnerable children and families. Two of your employees report to you that another employee has been talking to them animatedly about conspiracy theories, planets coming close to the earth causing a polar shift, that they believe stories about aliens being fallen angels, that these fallen angels were kicked out of heaven and some are walking around on earth to make us confused, that a meteorite is going to hit the earth and all the world leaders know about it.
 
A genuine concern is formed as to the mental wellbeing of the employee and whether she might pose a risk either to herself or others, including children, in continuing to perform her work before further investigations are able to be carried out.
 
As a result of this concern a direction is given to the employee to go on sick leave until she can provide a medical certificate stating that she is fit to perform her duties as a child protection caseworker.
 
Such a scenario arose in a recent case* before the NSW Civil and Administrative Tribunal where the employee claimed that her employer had discriminated against her on the ground of an assumed mental illness.
 
NCAT found that the employee was unlawfully discriminated against and ordered the employer to pay $20,000 for pain and suffering caused by the direction.
 
Why was this conduct discriminatory and what should the employer have done instead?
 
It was held that:
  1. Directing the employee to leave work on sick leave and not return until a medical clearance had been given amounted to a detriment;
  2. The giving of the direction met the “differential treatment” element of direct discrimination in that it was illogical to say that the same direction would have been given whether the person had an assumed mental illness or not if they had been espousing “conspiracy theories”. It was stated that inevitably it would have been “assumed that any employee who had animated conversations about conspiracy theories would also have had a mental illness”;
  3. It was no defence that the employer was acting in accordance with its policies in directing the employee to go on sick leave because the existence of such policies “cannot be used as a basis for excusing action which is in breach of the Act”;
  4. The “causation” part of the test for direct discrimination was satisfied because at least one of the reasons for the direction was that it was thought the employee had a mental illness.
What should an employer do if it suspects an employee of suffering from a mental illness and is concerned this may pose a risk to themselves or others in performing their role?
 
There is little doubt that the employer’s actions in this matter were properly motivated and the concerns were genuine. However, it needs to be recognised that a lot of employees will have animated conversations about wide ranging topics but to assume a mental illness in such circumstances is a big step, and to take detrimental action based upon that assumption is an even bigger step. An employee talking passionately about their football team’s performance on the weekend may, to some, show signs of a mental illness but to others who share that passion would appear completely normal. Objectivity is required and is perhaps what was missing in this matter.  
 
Perhaps a more prudent approach would be to undertake further investigations prior to taking further action to ascertain the extent of the conduct giving rise to the concerns and whether this is new and out of character or typical behaviour for the employee. This would include speaking to the employee to put the concerns to them and to get their response. It may be that once made aware that the behaviour is causing some concerns it will be curtailed or ceased.
 
Clearly no action is appropriate unless the behaviour poses a risk and this needs to be carefully assessed to determine what the risk is and how it can be managed. If it is determined that the risk is sufficient to remove the employee from their usual duties then other alternatives could be considered such as different duties or working from home until medical evidence is able to be obtained. This should be done in consultation with the employee and doing so may avoid a finding of detrimental action being made.
 
Medical evidence should then be obtained as quickly as possible to assess whether the employee does suffer from a mental illness and, if so, what steps can be taken to accommodate it. If the mental illness cannot be accommodated then dismissal may be able to be considered on the basis that the employee is unfit for the inherent requirements of the job but again great care should be taken before reaching this conclusion.
 
If the medical evidence does not support a mental illness then the employee needs to be returned to their full duties as soon as possible. The assumed mental illness does not exist and whatever the behaviour is (if it continues) may need to be managed differently. If it is causing a disruption to the workplace or giving rise to complaints from customers then this is likely to be better managed as a disciplinary or performance issue than an assumed mental illness.
 
It goes without saying that wherever mental illness or suspected mental illness arises it needs to be dealt with sensitively and with the best interests of the employee, as well as other employees, being front of mind at all times.
 
If you need help navigating a situation like this we’d be happy to work through it with you.
 
*Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106: https://www.caselaw.nsw.gov.au/decision/5b03bb34e4b087b8baa89342
 
Post by Sarah Jones

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