Discrimination cases:  employees will ‘fight all the way’, lawyer warns

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Discrimination cases: employees will ‘fight all the way’, lawyer warns

Applicants in employment discrimination claims have a point to prove and will fight the case all the way through, a seminar on employment law has been told.

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Applicants in employment discrimination claims have a point to prove and will fight the case all the way through, a seminar on employment law has been told. 

Peter Rose, a senior associate with the law firm Phillips Fox, told the Law and Finance Ltd seminar in Sydney that the answer to such claims in many cases was ‘not to go to court’.  

‘Decisions about that are what lawyers are for,’ he said. 

Detailed laws

Rose, a former branch secretary of the Australian Workers’ Union and now an employment law practitioner, said the laws affecting discrimination in employment were very precise and thorough. 

He said job specifications, advertisements, and application forms were affected by anti discrimination legislation, criminal record issues and trade practices legislation.

Recruitment issues

Rose said discrimination at state and federal level applies to recruitment and offers of employment, particularly regarding

  • Not engaging a person because of a specified attribute

  • Offering less favourable terms and conditions because of a specified attribute

He said HR practitioners need to consider the content of job advertisements:

  • Do they raise an issue of unlawful discrimination?

  • Do they raise an issue of unlawful indirect discrimination? eg requirement for overtime

‘Make sure they are directed at genuine occupational requirements,’ Rose said. ‘Anything else could be seen as potentially acting in a discriminating manner.’ 

Note on Victorian law

He said that Section 195 of the Victorian Equal Opportunity Act 1995(Vic) makes it an offence for a person to publish or display, or authorise the publication or display of an advertisement or notice that indicates that any person intends to engage in unlawfully discriminatory conduct.

‘However it is a defence if reasonable precautions were taken to prevent the publication or display,’ he said. 

‘Section 100 of the Equal Opportunity Act prohibits a person requesting or requiring another to supply information that could be used to form the basis of discrimination, except if the information is reasonably requested or required for a non-discriminatory purpose (eg, Occupational Health and Safety).’ 

Rose said it is an exception if it is based on the inherent requirements of the position.

Criminal Offences 

Rose pointed out that the Equal Opportunity Act does not prohibit discrimination on the ground of criminal record or history. 

However the regulations made under the Federal HREOC 1996 Actdeclare that any distinction, exclusion or preference made on the ground of criminal record constitutes discrimination.

‘The exception is if it is based on the inherent requirements of the position,’ he said. ‘It would not be unreasonable not to appoint someone convicted of fraud to a position as a bank teller.’

He said relevant factors include:

  • how old the criminal record is

  • age when crime occurred

  • subsequent history

Rose pointed out that certain criminal offences ‘lapse’ after a period of time and can no longer be taken into account. 

He said that while HREOC hears criminal record discrimination complaints it cannot make orders or impose sanctions, however it can conciliate or prepare a report which can be tabled in Parliament. 

Interviews generally  

Rose warned HR practitioners that advertisements and interviews can be relied upon as evidence of employment arrangements. 

‘Promises and representations may be binding even if not included in a subsequent written employment offer or contract,’ he said.  

He said job applicants should not be misled in interviews about major issues such as:

  • security of employment

  • length of employment      

  • probationary period

  • status (eg, reporting to CEO)

References and referees – the rules 

Rose said that when giving references for former employees, employers needed to be aware that:

  • Negative information relayed about a former employee can form the basis of defamation claim

  • Truth in Victoria is a defence to defamation (unless done with malice)

  • Inaccurate reference may also give rise to a negligence claim by ex-employee if he/she does not get the job as a result

  • Inaccurate 'positive' information given about an ex-employee could give rise to a negligence claim by a new employer.

General tips on references 

Rose said that people giving references should be careful they do not breach confidentiality/non-disparagement clause or a no comment or do not disclose clause.

Potential employers when checking references should speak to immediate supervisor (with consent of employee if possible). 

They should also ask general questions, 'Is there anything an employer would want to know about?'

‘Rejected applicants who believe they have been discriminated can have access to the personnel file and the material on it will go in court records,’ he warned. 

‘So you need to be careful about what you write. For example, don’t write down “nice blonde” or “good legs” – it could get you into awful trouble.’ 

He said employers should keep job application records for between two and 12 months.

Pre-employment medicals 

Rose said 10 important tips for employers in this area are: 

  1. The overriding requirement is for pre-employment questions/ assessments to be directed solely to specific job.
  2. Remove/modify generic questionnaire, medical requirements and policies.
  3. Don’t ask dangerous questions, eg. 'have you ever had a previous workers’ compensation claim?'
  4. Confine questions and assessment of ability to perform the inherent requirements to a current illness/injury not past ones.
  5. Identifyspecific requirements of particular job in question:

    • is the position essentially the same if you were to take out the particular duty/function the potential employee cannot do?

    • it usually helps if you have a detailed job description prepared.

  6. Consider whether medical assessment is warranted at all.
  7. When seeking medical assessment, set the parameters for the medical examiner (including detailed list of duties).
  8. Consider carefully which candidates should be tested (eg, only those that disclose a relevant medical condition or only short listed applicants or the successful applicant).
  9. Consider whether reasonable modification of the position can be made that will enable the candidate to perform the inherent requirements.
  10. The doctor is not the one making the decision.
  11. Be careful!

    Psychological testing 

    Rose said psychological testing was becoming more common but raised its own problems, particularly through allegations of discrimination and the fact that some HR people were tempted to rely on the outcomes totally. 

    ‘You still need to pick the best person for the job,’ he said. 

    He said he had a personal experience in the oil industry where the company he worked for was trying to get people to become supervisors.  

    ‘One part of assessment was psychological testing,’ he said. ‘One man who applied to become a supervisor was not selected. He had an attitude problem and management didn’t like him.

    ‘When he asked why not they told him that his psychological test had found that he “did not  have the personality skills to be a commercial pilot or a lawyer”, which was apparently an indicator of potential as a supervisor. 

    ‘He replied: '‘Haven’t you read my personnel file, I already am a commercial pilot.’'

    ‘He still didn’t get the job of supervisor.’  

    Related 

    Recruitment generally 

    Guidelines fro writing and publishing recruitment advertisements

     

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