AS WORKERS are hit by falling workplace and personal injury pay outs, a new form of legal compensation will see employers face an increase in disability discrimination claims, according to a leading employment lawyer.
Most people who sustain a major physical or psychological injury have some difficulty returning to work, said Allens Arthur Robinson workplace relations lawyer Peter Arthur. “Increasingly, these problems see employers facing legal action and compensation claims,” he said.
Disability claims are up by 9 per cent in the last year, despite an overall decrease in sex and race discrimination cases in the last four years, according to the latest Human Rights and Equal Opportunity Commission figures.
Under current federal law disability discrimination payouts are uncapped, so it is an attractive legal avenue for workers who face increasingly restricted personal injury or workers compensation payouts.
Tribunals have so far found in favour of the vast majority of claimants; however, “no disability discrimination awards to date have been over the $100,000 mark,” Arthur said.
Stress-related compensation claims have increased, and the Australian Chamber of Commerce and Industry, Australia’s biggest employer group, has expressed concerns about this upsurge.
While cultural change and education have reduced sex and race discrimination, “disability discrimination is much harder to prevent in a workplace because it can take such a wider variety of forms,” Arthur said.
He cited a number of examples: There was “a manager who suffered a head injury in a car accident, underwent a mild personality change and became highly aggressive and moody with the staff he managed upon retuning to the workplace”.
“Under current law, there’s a strong case that asking this manager to leave his job or reassigning him to another role would constitute disability discrimination. Instead, the employer has to counsel the staff about how to deal with their manager’s new temper and moods,” Arthur said.
Other cases included the one-eyed fireman who was awarded $10,000 after not being considered for training and promotion.
As well, a teacher commenced proceedings against a school, claiming he was discriminated against because he had a stutter which parents and students said made him hard to understand.
Because of the availability of uncapped damages, Arthur explained, as well as an extensive definition of “disability” in the legislation, there is likely to be “further substantial growth” in these sorts of claims. Eventually these will start to present employers and public bodies with a real problem, he said.