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The inherent requirements of disability defence

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 61, 28 July 2004

A recent decision of the NSW Administrative Decisions Tribunal has confirmed the strict obligations imposed on employers who seek to rely on the ‘inherent requirements’ defence when rejecting a job applicant with a disability.

Mr Zraika applied to join the NSW Police Service. He was required to complete a health assessment and submitted to an eye examination which applied the Snellen test of visual acuity. Mr Zraika failed the Snellen test and his application was rejected.

Mr Zraika claimed that the decision to reject his application on the basis that he failed the Snellen eye test amounted to unlawful disability discrimination. The Police conceded that its decision to reject his application was direct discrimination, although argued that Mr Zraika’s poor visual acuity meant he was unable to carry out the inherent requirements of a police officer and accordingly the decision was not unlawful because fell within the “inherent requirements” defence.

The Tribunal found that the Police could not rely on the inherent requirements defence. In order to do so, an employer must undertake the following the steps:

• clearly identify the inherent requirements of the particular position - the Tribunal found the duties listed on the Police application form was ‘too broad’;
• assess whether the applicant is able to perform the inherent requirements of the particular position firstly, without assistance, and secondly, with the provision of “services and facilities” that would not impose an “unjustifiable hardship” on the employer - the Police did not determine the degree of risk to others’ safety caused by Mr Zraika’s disability and the potential consequences of such risks and did not consider whether any services or facilities could be provided to Mr Zraika to assist him; and
• give consideration to the applicant’s “past training, qualifications and experience relevant to the particular employment” and other relevant factors - the Police had failed to consider Mr Zraika’s previous employment as a motor mechanic, security guard, his involvement in sports and his firearms accreditation, which all require a reasonable degree of visual acuity.
  

Mr Zraika was awarded $10 000 in damages and the Tribunal ordered the Police to re-assess his application.

HR Tips

While this case related to recruitment, the same inherent requirements defence applies to termination of injured or sick employees. Accordingly, before terminating an employee for unfitness to perform their job, employers must:

• identify the inherent requirements of the particular position;
• assess whether the employee can perform the inherent requirements, with regard to appropriate evidence such as medical reports; and
• if the employee cannot, consider whether the employee could perform the inherent requirements with services or facilities, provided this does not impose unjustifiable hardship.
  

Joanne Ede

Senior Associate

Australian Business Lawyers