Discrimination in the police service

Cases

Discrimination in the police service

The New South Wales Police Service successfully defended a complaint that it discriminated against an applicant because of colour blindness, by arguing that the ability to distinguish colours constituted an inherent requirement of the duties of a police officer (Loscialpo v NSW Police Service [1999] HREOCA 107, 2 September 1999).

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"What are you blind, Officer?"

The New South Wales Police Service successfully defended a complaint that it discriminated against an applicant because of colour blindness, by arguing that the ability to distinguish colours constituted an inherent requirement of the duties of a police officer (Loscialpo v NSW Police Service [1999] HREOCA 107, 2 September 1999).

On 20 April 1997, the complainant applied to enter the NSW Police Service. He was required to undergo a medical and an optometrist recommended that the complainant test his eyesight for colour blindness. An assessment ultimately resulted in the refusal of the complainant's application. The Commission set out to examine five questions:

  1. Did the complainant have a disability within the legislation?
  2. Did the Service refuse the application because of the disability?
  3. Did the refusal constitute prima facie discrimination within the context of the Act?
  4. If so did the Service have a defence within the provisions of s15(4) of the Act?
  5. What orders should be made?

In relation to the first question it was not contested that the complainant suffered colour blindness and that this constituted a disability within the scope of the definition of s4(1) of the Disability Discrimination Act 1992. Likewise, it was not challenged that the complainant's application was refused because of the blindness and that this refusal constituted discrimination at a prima facie level. The Commission was accordingly left to consider questions 4 and 5, that is whether the Service made out a suitable defence under s15(4) of the Actand what orders ought to be made.

Section 15(4) of the Actprovides that discrimination by an employer on the ground of a person's disability is not rendered unlawful if the person is unable to carry out the inherent requirements of the position. Based upon expert evidence, the Service submitted that the complainant's disability would result in errors in identifying and differentiating colours; a high risk of accidents, by reason of a failure to see red lights sufficiently quickly; and a reduced capacity to carry out the search functions required of police officers. The Police Service argued to the Commission's satisfaction that these tasks and functions where all inherent requirements. To this end the defence relied upon by the Service was made out and the complaint dismissed.

Policies may indirectly discriminate

Employer policies, whilst appearing to be fair and consistent may in fact be indirectly discriminatory. The New South Wales Administrative Decisions Tribunal has held that the tenure and transfer policies of the Northern Metropolitan Region of the NSW Police Service have an indirect discriminatory effect (Carr -v- Commissioner of Police, New South Wales Police Service [1999] NSWADT 74 (8 September 1999)).

Involved in a motor vehicle accident whilst on duty as a police officer, the complainant suffered a disability within the meaning of Anti-Discrimination Act 1977(NSW). The nature of his disability was a 20% loss of movement in his neck and a 15% restriction on his back. The complainant was advised by his neurologist that upon returning to work, he should not use public transport, in particular trains, because this would strain his neck and precipitate headaches. Therefore, the only restriction placed upon complainant was that he not use public transport and that he work locally in Gosford.

Prior to accident complainant worked as a highway patrol officer attached to the Eastwood Local Area Command at Hornsby. Upon return to work in August 1997, he was temporarily appointed to the Gosford Police Station. In September 1997, the complainant sought a compassionate transfer into a permanent position on the Central Coast. The transfer was refused and the complainant advised that as of the end of June 1998, he would have to transfer back down to Sydney.

Around April 1998, two positions for the Central Coast were advertised - one as a specialist highway patrol officer, and the other a general duties position. The complainant applied for the latter with the view, if successful, to immediately applying for the highway patrol position. This process was necessary because the transfer and tenure policy of the Northern Metropolitan Region excluded for consideration as highway patrol officers all persons who were not working as general duty officers on the Central Coast. Not surprisingly, the complainant was not approved for the general duties position on medical grounds.

In late June 1998 the complainant was also advised that he would be placed on a rehabilitation programme and this required returning to work at Pennant Hills. The rehabilitation programme was eventually abandoned, however, the return to full time work in Pennant Hills necessitated that he drive to work each day.

In April 1999 the Service admitted that it discriminated against the complainant on the ground of disability in relation to his application to be transferred to general duties on the Central Coast. The NSWADT was also of the view that the Service indirectly discriminated against the complainant by reason of the operation of the transfer and tenure policy. It was held that the requirement that the complainant be a general officer on the Central Coast before consideration could be given to any appointment was unreasonable in the circumstances. It was also held to be unreasonable that the complainant was placed on a rehabilitation programme in Sydney when all the medical advice was that the complainant could not meet such a demand.

The complaint was substantiated and the Tribunal recommended that the tenure and transfer policies of the Northern Metropolitan Region be reviewed with a view to removing any discriminatory effect. The Service was ordered to appoint the complainant to a position on the Central Coast until he could be considered for a permanent appointment. Finally, the Service was ordered to pay $4 949, which was made up of $2000 general damages and the balance in respect of maintaining a vehicle to travel to Pennant Hills.

 
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