Employers have added obligations under the Disability Discrimination Act

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Employers have added obligations under the Disability Discrimination Act

The Disability Discrimination Act, which was passed last month, will contribute to the already increasing rate of stress-related claims by employees and employers must respond appropriately, a law firm says

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The Disability Discrimination Act, which was passed last month, will contribute to the already increasing rate of stress-related claims by employees and employers must respond appropriately, a law firm says.
 
Lesley Maclou, partner at Harmers Workplace Lawyers says that while there is no specific stress legislation, the new Act could lead to an increased focus on how employers manage stress-related illness and the return to work of employees suffering from such illness.
 
According to government statistics in Australia, the total cost of workers compensation claims for stress-related conditions is estimated at over $200 million every year.
 
Employer’s burden of proving necessary and reasonable steps
 
Maclou says that in addition to common law and OHS legislation, the federal Disability Discrimination Act imposes obligations on employers that greatly impact the way they deal with disabled employees, as well as stress-affected employees. See a previous article on the amendments, published on WorkplaceInfo.
 
In particular, the new Act confirms that the burden of proof is now on employers to show they have taken all necessary and reasonable steps to adjust their workplaces to enable a stress-affected employee to return to work.
 
‘If the employer is unable to prove that reasonable adjustments have been made that could have enabled an employee with a stress-related illness to safely return to work (or indeed to prevent such an employee being treated less favourably than another employee without such an illness), the employer could face a claim of unlawful disability discrimination,’ she says.
 
However, Maclou says that employers will be able to defend their inaction if they can prove that the required adjustments to their workplaces would place a significant burden or an ‘unjustifiable hardship’ on their business and its ability to operate.
 
Identify cause or reason for exacerbation
 
Maclou says that stress-related illness is typically difficult to identify. Firstly, its causes are exemplified by both physical and mental conditions. Secondly, it can arise directly out of a particular work-related incident, the ongoing work environment or may extend to pre-existing conditions that are exacerbated by a workplace incident or ongoing ‘unsafe’ workplace environment.
 
Maclou also notes that the global economic downturn, the subsequent fears over job security and the way in which employers are managing these issues has also contributed to rising stress levels in the workplace.
 
Therefore, she says employers must identify the cause of the original stress or the reason for its exacerbation at work in order to implement practical measures to assist an employee with a stress-related illness to successfully return to work as well as minimise legal risks.
 
Control stress contributors with practical measures
 
Maclou says employers must consider whether or not the factors contributing to an employee’s stress-related illness are within their control and then ensure they have strategies, policies and processes in place to control these contributors, such as providing anti-bullying and anti-harassment training and education for employees.
 
Strategies may also involve:
  • reducing a stress-affected employee’s hours or workload
  • rearranging teams or implementing buddying to avoid adverse interactions between a stress-affected employee and an employee who may be causing an issue
  • offering employees access to confidential help via an independent third party counsellor or via a workplace rehabilitation coordinator.
 
Maclou says employers must be committed to genuinely addressing reasonable adjustments in circumstances involving stress-affected employees and must consider undertaking risk assessments, ongoing monitoring, so as to avoid potential legal risks and to ensure the safety of all of their employees.
 
'Workplace stress is an issue that must be addressed seriously by employers and managers. The best prevention is to ensure good workplace practices are always upheld, putting in place policies,' she says.
 
 
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