Restricting duties of employee with blood disorder found discriminatory

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Restricting duties of employee with blood disorder found discriminatory

By imposing work restrictions that were known to be unnecessary, the employer treated the employee less favourably than it would have treated a person without a particular blood disorder.

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By imposing work restrictions that were known to be unnecessary, the employer treated the employee less favourably than it would have treated a person without a particular blood disorder.

This constituted direct disability discrimination. By requiring the employee to obtain a further medical certificate justifying the removal of the unnecessary work restrictions, the employer had imposed a requirement on the employee that he could not comply with and which was indirectly discriminatory on the basis of his disability.

Background

The employee-policeman was of mixed Aboriginal and African race.

The man was known to be a carrier of sickle cell trait when he joined the NSW Police Service in 1995. He was accepted as fit for all duties. The employee was later placed on informal restricted duties.

The employee was referred to a specialist who prepared a report that indicated he could continue on full operational duties. However, his GP wrote a certificate that said the employee was generally fit and healthy but precautions were called for. The GP apparently did not understand that his certificate may lead to the employee being placed on formal restricted duties. For almost two years the employee worked with restrictions aimed at avoiding physical confrontations.

He wished to return to normal duties and he complained to the Human Rights and Equal Opportunity Commission. This lead to the police obtaining a report from a further specialist who confirmed the police medical officer's view that restrictions were unnecessary. The restrictions were lifted after the constable's GP wrote a revised certificate.

Sole cause of discrimination?

The Magistrate noted that a person’s disability does not have to be the sole cause of for the conduct in issue:

‘To demonstrate that the relevant treatment took place "because of" or "on the ground of" a person's disability requires an examination of the real reasons or grounds for the conduct: IW v City of Perth (1997) 191 CLR 1 at 63 and Purvis v Department of Education (2003) 78 ALJR 1 at [166]. Section 10 of the DDA makes clear that the disability need only be one of the reasons for the relevant conduct.

It is sufficient that the unlawful consideration played "a causative part".’

Direct discrimination

The Federal Magistrate stated:

'…Imposing work restrictions that were unnecessary and were known to be unnecessary at the time they were imposed...constituted direct disability discrimination.

By requiring ... a further medical certificate justifying the removal of the unnecessary work restrictions, the NSW Police Service imposed a requirement ... which was indirectly discriminatory on the basis of his disability.'

Indirect discrimination also

The Magistrate found indirect discrimination to be established as well:

' ...those work restrictions were themselves discriminatory, pursuant to s.15(2)(a) of the DDA. The requirement that Constable Trindall produce medical opinion supporting the removal of those restrictions was in my view a further discriminatory act under s.15(2)(a).

In any event, the requirement or condition imposed upon Constable Trindall that he demonstrate his fitness for service by producing medical opinion justifying the removal of the restrictions constituted a "detriment" for the purposes of s.15(2)(d) of the DDA. It was a detriment because Constable Trindall was prevented from performing the duties which he sought to perform unless he could comply with the requirement.

It follows that the claim of indirect disability discrimination has been established.'

The NSW Police Service was ordered to pay $10,000 in damages for placing the employee on restricted duties.

Trindall v New South Wales Commissioner for Police [2005] FMCA 2 - Driver FM - 7 February 2005 

Related

Fit for duty?
 
Failure to make workplace adjustments for disabled held indirect discrimination
 

 

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