In a recent NSW case, the Federal Circuit and Family Court of Australia had to determine whether an employer discriminated against an employee when it dismissed her after it discovered that she had attention deficit hyperactivity disorder (ADHD) and Asperger’s Syndrome.

Discrimination on the grounds of disability

Under the Disability Discrimination Act 1992 (Cth) (DD Act), it is unlawful for an employer to discriminate against an employee on the grounds of the employee’s disability by dismissing the employee or subjecting them to any other detriment.

This will be the case if:

• the employer dismisses the employee, or the employer subjects the employee to other detriment;
• in doing so, the employer treats the employee less favourably than the employer would treat an employee without the disability in circumstances that are not materially different (this requires construction of a notional person or comparator against which the treatment of the aggrieved person can be compared); and
• the employer dismisses the employee or subjects the employee to other detriment, for the reason, or for reasons that include, that the employee has the disability.

The Court needs to identify the circumstances in which the dismissal occurred and consider how the employer would have treated a person who does not have the disability in those circumstances. Is it less favourable? If so, was this because of the disabled person’s disability?

Case study

In a recent case before the Federal Circuit and Family Court of Australia, a trainee train driver was dismissed because she allegedly didn’t disclose that she had ADHD or Asperger’s Syndrome. The employee claimed the employer had engaged in unlawful discrimination on the grounds of her disability.

The Court devised the comparator as a person who did not have ADHD and Asperger’s Syndrome, not someone who acted dishonestly in connection with the disclosure of the comparator’s medical condition. That was because there was no evidence the employee had sought to conceal her disabilities from the employer.

The Court ruled the employer would not have required that comparator person to undertake a medical assessment and be dismissed for dishonestly failing to disclose her true medical condition. Without at the very least undertaking enquiries of that employee, the employer would not have had any basis for concluding the employee had been dishonest. Therefore, by dismissing the employee on the grounds of dishonesty and failure to disclose, the employer treated the employee less favourably than it would have treated the comparator.

The Court ruled the employer dismissed the employee because she had ADHD and Asperger’s Syndrome. The Court was not satisfied the reason for dismissal was because she had been dishonest. In those circumstances, there was no reason or reasons that is or are capable of rationally explaining the decision to dismiss once the employee’s disabilities became known.

The Court observed confidence in making these findings was strengthened by the employer not having identified the person or persons who made the relevant decisions and why.

For these reasons, the employer had engaged in unlawful discrimination, contrary to the DD Act.