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Indirect discrimination - a reasonable requirement of the job?

Excerpts from this article first published in 'Human Resources' Magazine, Issue 57, 2 June 2004

Two recent appeal cases demonstrate that it is reasonable for an employer to require an employee to attend the workplace, even where alternatives (such as working from home) are available. The ‘reasonableness’ of a requirement will be a significant factor in determining whether an employee has been subject to indirect discrimination on the ground of the employee’s carers’ responsibilities.

In State of Victoria v Schou [2004] VSCA 71 the Victorian Court of Appeal held that the State of Victoria did not indirectly discriminate against Deborah Schou, a long-serving Hansard sub-editor, by preventing her working from home via modem for a limited period of time in order to care for her sick child. The Court found that it was a condition of Ms Schou’s employment to work full time on-site because her demanding job required a high level of interaction with other staff members.

The Court of Appeal considered whether the requirement to work on-site was “not reasonable” under Victorian anti-discrimination laws. The Court stated that it was “almost inconceivable that the attendance requirement for sub-editors to attend the house on sitting days should be regarded as not reasonable” in the circumstances. The test of ‘reasonableness’ required the Court “to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other.”

The Court found that “the presence, as here, of a logical and understandable basis for the requirement or condition must be an important factor… there can be no doubt but that the attendance requirement was both appropriate and adapted to serve the end it was intended to serve.”

As to the option of working from home via modem, the Court stated that where, as in this case, the requirement to attend the workplace was reasonable, “the existence of the alternative - an alternative which was put forward merely as a short-term solution to the temporary problem” did not make the requirement unreasonable. The Court noted that Ms Schou’s request to work from home had been a short term solution to a temporary problem. In this case, alternatives to the reasonable requirement to attend the workplace were “a matter for proper management, not anti-discrimination legislation.”

HR Tips:

• Employers should be clear about the operational and commercial reasons for an employee attending workplace.

• Where an employee is unable to attend work because he or she has family or carers’ responsibilities, an employer should consider possible options to accommodate the employee.
  

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