Australia: Hidden disabilities in the workforce and inadvertent discrimination

A recent case before the Victorian Supreme Court of Appeal, Ferris v State of Victoria [2018] VSCA 240, serves as a reminder for employers that they can be found guilty of unlawful discrimination even if they were unaware of their employee’s disability, or the discriminatory effect of its requirements on individual employees.

Mr Ferris was a store supervisor in a prison, who was dismissed for misconduct, including swearing in an aggressive manner to a prisoner and not properly accounting for or banking monies received in the course of his duties. Mr Ferris suffered from type 2 diabetes, and brought a case before the Victorian Civil and Administrative Tribunal, alleging discrimination under the Equal Opportunity Act 2010 (Vic). Mr Ferris alleged his employer, the Department of Justice and Regulation, discriminated against him by treating him unfavourably by imposing unreasonable working conditions on him. As a result, he was unable to regulate his insulin levels by eating or taking breaks, which negatively impacted his health.

The facts of this case highlight the difference between ‘direct’ and ‘indirect’ discrimination.