A recent decision made by the Federal Circuit Court (Court) provides a timely reminder of the need to take care when making decisions about the ongoing employment and duties of ill and injured employees. The decision also highlights the difficulties in balancing operational requirements and reasonable adjustments for employees with disabilities.

Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 182

Facts
Ms. Caryn Huntley was a Probation and Parole Officer with Corrective Services New South Wales when she was diagnosed with Crohn's disease. Her illness necessitated ready access to toilet facilities and limited her ability to travel long distances. Following a period of personal leave, her duties were informally adjusted to avoid the need for her to perform field work, but after approximately six months she was informed that these arrangements could not continue because of operational constraints.

For a period, Ms. Huntley performed a secondment in another department, but this was not extended as a result of concerns about Ms. Huntley's excessive sick leave and restricted ability to travel long distances. Around this time she was also diagnosed with a sleep disorder and was then placed on a period of forced personal leave.

Ms. Huntley brought a claim against her employer for, amongst other things, unlawful discrimination in breach of the Disability Discrimination Act 1992 (Cth) (DDA).

Decision – Breach of the DDA
The key question in the case was whether the employer had taken appropriate steps to make (or made appropriate enquiries about making) reasonable adjustments to allow Ms. Huntley to perform her substantive role.
Critical to the Court's conclusion that the employer had breached the DDA by failing to make reasonable adjustments were the judge's findings that:

• the informal adjustments to Ms. Huntley's duties were implemented without her having been consulted on the changes and ended without adequate explanation as to why they could no longer be accommodated
• no relevant person within the employer had turned their minds to the inherent requirements of Ms. Huntley's role nor the reasonable adjustments that would have been required to enable her to fulfil her role
• the conclusion by management that Ms. Huntley was unable to take trips longer than 30 minutes was a misinterpretation of medical advice
• Ms. Huntley was able to work in a 'full-time office position' capacity, and assumptions by her managers that she was unfit to do so were contrary to the medical evidence
• Ms. Huntley was placed on forced sick leave, despite medical evidence that she was fit for work.

The Court found that whilst the employer did take steps to assist Ms. Huntley in applying for alternative positions and brought to her attention a number of vacancies, this process was flawed as a result of assumptions about Ms. Huntley's capabilities and a lack of consultation with her.

Ultimately, the employer was unable to establish that Ms. Huntley could not meet the inherent requirements of her position, even with reasonable adjustments.

Decision – Breach of Contract
Interestingly, the Court found that as a result of the conduct said to constitute discrimination against Ms. Huntley, the employer had breached the following implied terms in Ms. Huntley's contract of employment:

• trust and confidence between the parties
• safe work
• good faith
• the obligation to make reasonable adjustments
• the employer would not act inconsistently with its policies.

There was little consideration given in the judgment as to the basis for the judge's findings that these terms were implied into Ms. Huntley's employment contract. Given recent developments in case law around this area of the law, the wider applicability of this finding remains to be seen. If the decision is accepted as good law, it could potentially have wide ranging ramifications for the liability of employers in respect of their treatment of ill and injured employees. This is particularly relevant in the context of public sector employees, the terms of whose employment are also subject to much broader obligations under public sector legislation, policies and procedures.

Damages
Ms. Huntley was awarded damages of more than AUD180,000 plus interest. This amount included compensation for:

• pain and suffering, and breach of contract in the amount of AUD75,000
• loss of wages, leave entitlements, superannuation, psychologist costs and loss of promotion opportunities in the amount of AUD98,863.89.

The damages for non-economic loss arose out of a finding that the employer's conduct had contributed to a psychological injury in Ms. Huntley, despite the fact that this condition had, to a certain extent, been pre-existing.

Lessons Learned
Employers are reminded that a failure to make reasonable adjustments for employees with disabilities is a ground for unlawful discrimination in and of itself.

What will be sufficient to meet an organisation's obligation to provide reasonable adjustments will depend on the circumstances of the case. However, it is important to obtain reliable medical evidence to guide decision making in relation to ill and injured employees. In assessing the reliability of medical evidence, employers should consider the following questions:

• Does the medical evidence come from an appropriate area of medical specialisation?
• Does the medical evidence address all issues adequately?
• Is the medical evidence up to date?

In dealing with ill and injured employees, employers should seek appropriate legal advice and ensure they:

• take steps to proactively deal with absences before they become long term
• do not make assumptions about fitness for work, but rather seek medical opinions and the input of the relevant employee
• genuinely consider the reasonableness of suggested adjustments and clearly articulate why a proposed adjustment is unreasonable and would cause unjustifiable hardship
• be clear about what the inherent requirements of an employee's position are and the extent to which their fulfilment is limited by the employee's illness or injury. To this end employers should, where appropriate, aim to develop comprehensive and targeted job descriptions.