How to avoid discrimination and adverse action claims

This is the sixth part of a series of employment law articles by Whitehall Workplace Law discussing some of the legal and practical matters small businesses ought to consider in relation to the employment life cycle of an employee, that is, from the recruitment stage to the employee ceasing to be employed. Part five of the series, published on 10 August, looked at human resources policies for small business. This piece looks at unlawful discrimination and “adverse action”.

What is unlawful discrimination?

Not all discrimination is unlawful.  In many cases, it will be entirely appropriate, and often necessary, for a business to discriminate. However, an employer’s conduct may be unlawful where, for example, it does, or doesn’t do, something in relation to a job applicant or existing employee because of a protected ground, such as the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carers’ responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (Please note: this is not an exhaustive list – some different protected grounds exist under different State / Territory legislation.)

Australia’s first anti-discrimination legislation was enacted in 1966 in South Australia. Today, we have a densely regulated overlapping system of Federal, State and Territory laws each based upon a similar platform of obligations, rights and remedies.  In the employment context, unless an employer can show it took reasonable precautions to prevent or avoid the conduct of its employees, it will be vicariously liable for the acts committed by the perpetrators.

There are two main types of discrimination: direct and indirect.

A person (the discriminator) directly discriminates against another person (the aggrieved person) if by reason of a relevant protected attribute relating to the aggrieved person (such as the person’s sex or age for example) or on the basis of a characteristic that generally applies, or is imputed to apply, to persons with that same attribute, the discriminator treats the aggrieved person less favourably than a person without the attribute would be treated, in circumstances that are the same or not materially different.

Indirect discrimination is often more difficult to detect than direct discrimination. A person (the discriminator) indirectly discriminates against another person (the aggrieved person) on the basis of a protected attribute (again, such as the person’s sex or age) if the discriminator requires the aggrieved person to comply with a requirement or condition which a substantially higher proportion of persons without the relevant attribute are able to comply, which is not reasonable having regard to all the circumstances and with which the aggrieved person cannot comply.

What is adverse action?

The Fair Work Act 2009 (Cth) (FW Act) makes certain “adverse action” unlawful. An employer must not take adverse action against another person because that person has a “workplace right”, has or has not, exercised a workplace right or proposes, or proposes not to, exercise a workplace right. “Workplace rights” are broadly defined. “Adverse action” is defined to include dismissing an employee, injuring the employee in their employment, altering the position of the employee to the employee’s prejudice or discriminating against the employee.

The boundaries between anti-discrimination law and the adverse action provisions contained within the FW Act are blurred. To avoid claims or falling into the quagmire of dispute in this area (both in relation to conduct at the recruitment stage and during employment) employers should question and challenge the underlying reason for business decisions and the potential effect of what might seem to be well-intentioned practices on specific groups of employees before such action is implemented.

Jeremy Cousins, Principal, Whitehall Workplace Law

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