What happens if the disability discrimination act is broken

It is also unlawful for an employer to discriminate against an employee on the basis of their disability:. It is not unlawful to discriminate against a person on the basis of their disability if the discrimination relates to particular work and the person, because of the disability, will be unable to carry out the inherent requirement of the particular work even if reasonable adjustments were made to accommodate their needs.

When assessing whether a person would be able to carry out the inherent requirements of particular work, the following is to be taken into account:. Section 21B permits a person to discriminate against another person on the basis of their disability if avoiding the discrimination would result in unjustifiable hardship to the first person. The act also prohibits disability discrimination in the areas of education, access to premises, accommodation, goods, services, facilities, and land, sport and commonwealth.

The act establishes several criminal offences with maximum penalties of imprisonment. These include victimising a person because they have been involved in making a complaint to the Human Rights Commission under the act section 42 , which carries a maximum penalty of imprisonment for six months. It is also a criminal offence to incite unlawful behaviour under the act Section 43 , with a maximum penalty of imprisonment for six months. It is an offence to publish or display advertising that suggests an intention to behave in a way that is unlawful under the act section 44 , with a maximum penalty of a fine of 10 penalty units.

If you experience disability discrimination, you may want to try to resolve the situation directly with the person concerned. If you are not able to resolve the situation, you can make a complaint to the Australian Human Rights Commission. You can do this yourself or get a solicitor of trade union to make it on your behalf. The complaint must be in writing and must provide details of what happened, where and when it happened and who was involved.

The Commission will generally approach the respondent, give them a copy of your complaint and ask for a response. It will try to resolve a situation in a way that is acceptable to the parties. If it is appropriate, it may invite parties to take part in conciliation. If the situation cannot be resolved or if the complaint is discontinued, you can take the complaint to the Federal Court or the Federal Circuit Court.

If you have suffered discrimination, you may also be entitled to make a complaint under the state or territory laws of the jurisdiction you live in. If you make a complaint under state or territory law, you will not be able to then make a complaint to the federal Commissioner.

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The positive duty applies to employers of all sizes, regardless of whether they are a major company or a small cafe, and covers all types of workers: full-time, part-time and casual employees agents and contract workers trainees and apprentices. It applies to all stages of employment, including: advertising jobs and recruitment returning to work after injury, illness or pregnancy dismissal and retrenchment.

Examples of disability discrimination in the workplace Not considering a job applicant who uses a mobility scooter. Not allowing a staff member to bring their assistance dog to work. Bullying a staff member with an intellectual disability Not reasonably considering or providing alternative or light duties to an injured employee, whether or not their injury occurred in the workplace.

Are there any exceptions to the law? My human rights under the Charter. This includes recognising the benefits of having an inclusive and diverse workforce that does not exclude disabled people.

Discrimination can also be because of more than one protected characteristic — for example disability as well as race, religion or belief, sex, or sexual orientation. Employers can be held responsible too — this is called ' vicarious liability '. Employers also have a responsibility — a 'duty of care' — to look after the wellbeing of their employees.

If an employer does not do this, in some cases it could lead to a serious breach of someone's employment contract. If an employee feels they have no choice to resign because of it, the employer could face a claim of constructive dismissal. All employers must take steps to prevent disability discrimination happening in the first place. By law, employers must also consider making ' reasonable adjustments ' for disabled employees and job applicants.

If they do not do this, it could be discriminatory the legal term is 'failure to make reasonable adjustments'. Public sector organisations have an extra legal responsibility to stop discrimination, harassment and victimisation, under the public sector equality duty.

Find out about the different types of disability discrimination. Read examples of different types of discrimination. In addition, the law states progressive conditions should be taken to have a substantial effect where the impairment has had some effect and the condition is likely to result in a substantial adverse effect in due course. The substantial adverse effect on your ability to carry out normal day-to-day activities must be long-term.

An impairment will also be classed as continuing if it goes away but is likely to recur. So, if it is likely to come back after 12 months, this will make it long-term. An employment tribunal will consider if a medical condition is likely to have a long-term adverse effect as the time of the discrimination. So, even if you have a condition that is unlikely to have long-term effect at the time of the discrimination, but it ends up lasting over 12 months, you would not be classed as having a disability.

It also means that if you do have a condition that is likely to last for 12 months but you recover before this, you could still claim to have been disabled at the time of the unfair treatment.

Navya gave me some clear and fantastic advice which helped me clear my situation up. I can not praise this company any higher. I ask Trught Legal to help me with my employment matter. The service I received was fantastic. Nothing was ever too much and the professionalism from Mirek and Navya was brilliant, I was always kept up to date and they was always more than happy to help with anything which I needed. I have no hesitation in recommending Mirek and Navya to anyone in need of employment advice and legal services.

They dealt very professionally with the case and I am more than satisfied with the final result. While for most conditions, you will need to show that it has a substantial, long-term adverse effect on your ability to carry out day-to-day activities in order to claim you are disabled, there are a few conditions where the law says that you are automatically classed as having a disability.

The law also says that certain conditions will not be disabilities, even if you can show that it has a substantial, long term adverse effect on your ability to carry out normal day-to-day activities. But, if an excluded condition causes another impairment that meets the definition of disability, you will be covered.

There are different types of discrimination which apply to all protected characteristics sex; pregnancy and maternity; marriage and civil partnership; race; age; gender reassignment; religion or belief; sexual orientation and disability — see Discrimination claims :. In addition to this, if you are disabled you are also protected against discrimination arising from your disability and your employer is also under a duty to make reasonable adjustments to accommodate your disability and remove any disadvantage you may face.

Direct disability discrimination occurs where your employer treats you less favourably that it treats or would treat others because of your disability.

This means you need to compare how you have been treated to how a colleague whose circumstances are otherwise very similar to yours has been treated or would be treated. This colleague must have the same abilities as you. Direct disability discrimination is fairly uncommon as often the reason for the less favourable treatment is not the disability itself, but a reason related to it see below.

The law is also wide enough to give you protection if your employer discriminates against you because they think you have a disability even if you actually do not or because you are in some way connected or associated with someone who does have a disability.

There is also additional protection in place against direct discrimination during the recruitment process. It is unlawful for an employer to ask a job applicant a health-related question except in particular circumstances. If the employer does ask a health-related question and decides not to employ a disabled person as a result, the employer will have to show that the disability itself was not the reason the person was not employed.

See Can I be asked questions about my health during a job interview? This is one of the most common types of disability discrimination. It occurs where the employer treats you unfavourably because of something arising as a result of your disability and the employer cannot justify its conduct.

An employer is under a duty to make reasonable adjustments to avoid a disabled person being put at a disadvantage compared to people who are not disabled. It is worth pointing out that the duty is to make reasonable adjustments rather than any adjustment the disabled person needs.

An adjustment might not be reasonable if, for example, it is too expensive to put in place; if there are rules stopping property being altered; or if it would impact on the work or others in a negative way. If you do have a disability and changes at work could help you, then you should discuss this with your employer. There are lots of different adjustments that can be considered depending on your circumstances, such as changing the number of hours you have to work, changing break times or providing more breaks, changing the time you have to start work, changing some of your duties or changing your place of work.

Where reasonable adjustments have not been made, it will be very difficult for an employer to argue that it is justified in discriminating against an employee for a reason connected to their disability.

What is considered reasonable will depend on the disadvantage being suffered and how far the disability can be accommodated by that particular employer. A large employer with a lot of resources will be able to do more than a much smaller employer in terms of expensive adjustments, but not all adjustments are expensive. Indirect discrimination occurs where a condition, decision or practice this is called a provision, criteria or practice or PCP is applied to all employees but it disadvantages those with a particular disability or individuals with the same symptoms.

For example, a requirement that all employees undergo a medical assessment before working in a certain place; selection criteria for redundancy, promotion or recruitment; or particular working hours could all be a PCP.

In most cases, it will be easier for you to claim other types of disability discrimination than relying on indirect discrimination. But, for the other types of discrimination, your employer must know or could be reasonably expected to know from the information it has that you have a disability.

This is not the case for indirect discrimination. Therefore, if you have not told your employer about your disability, then you could still bring a disability discrimination claim. Under the Equality Act , harassment occurs where a person engages in unwanted conduct related to a disability and the conduct is intended to or has the effect of :.

So, if you take offence at something minor that most people would not be offended by, you will not have a claim. Victimisation has a very specific, legal meaning. It happens where you are treated unfairly for asserting your rights not to be discriminated against or support someone else who has. If you bring a disability discrimination claim, if your employer does not accept you have a disability, an employment tribunal will have to decide if you are disabled. It might do that at a separate hearing as if you are not disabled, you will not have a claim.

If you win your disability discrimination claim, you will be entitled to compensation. The amount of money you receive will depend on whether you have lost earnings because of your treatment.

If you have your compensation will be based on how much you have lost and also how the discrimination has impacted on you this is called injury to feelings. See Discrimination claims.