NSW Disability Discrimination Legal Centre

What is a disability?

Under the law, the term ‘disability’ is very broad. Disability includes, but is not limited to:

• Physical disability
• Physical illness or disease that makes, or has made, any part of the body or brain work differently
• Mental or psychiatric disability - including any behavioural disorder
• Intellectual disability
• Learning difficulty
• Disfigurement or different formation of any part of the body
• Any organism in the body that could cause disease or illness, for example, hepatitis with no symptoms or HIV with no symptoms

Both the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1977 (NSW) have slightly different definitions of disability but it is generally thought that the definition is so broad as to include just about any health condition, impairment or disability that you can think of.

Am I obliged to tell my employer about my disability?

The decision to tell your employer about your disability is a personal one. Strictly, there is no legal obligation for you to do so. If your disability does not affect your performance or ability to meet the inherent requirements of the job (including your ability to work safely and ensure the safety of co-workers) then you do not need to voluntarily disclose it.

When applying for a job, your disability should not be the central issue of concern. The real issue should be whether your skills and qualities are suitable for the job. In most circumstances it will not be necessary to mention anything about your disability in any application forms, letters or resumes. However, if an employer does not know about your disability, they may not be able to provide you with the assistance that you may need.

Also, if an employer is not aware that you have a disability, it will be virtually impossible for you to be successful in a formal disability discrimination complaint against them.

Benefits of disclosure

There are many positive reasons why you may choose to tell your employer about your disability.

Some factors to keep in mind include:

• Many employers have equal opportunity policies and/or action plans which reflect their commitment to non-discriminatory recruitment and employment procedures
• You may feel more comfortable telling your employer about your disability from the beginning
• Telling your employer about your disability may generate trust and an open relationship with your employer
• It may be desirable to disclose your disability if it impacts on how you do your job or the health and safety aspects of the workplace
• It may also be desirable to disclose your disability if it is impacting on your work performance, especially if you are facing disciplinary procedures or warnings for poor work performance. In this case you might need some workplace adjustments
• For some people, a disability is part of their identity. You can make a firm statement, presenting your disability not as a problem but as a positive attribute adding to the skills and personal qualities that you bring to the role

Why not tell?

The following are some reasons why you may choose not to disclose your disability to your employer:

• Your disability has no effect or impact on your ability to do the job. In this case, it is really none of your employer’s business
• You do not need any reasonable adjustments to perform your job at present, or in the foreseeable future
• You have already developed support structures external to the workplace
• You have a right to privacy
• Fear of unlawful discrimination such as harassment, dismissal, being denied job opportunities or promotions,
• Negative attitudes and stereotypes

What if you decide not to tell your employer about your disability?

If you decide not to disclose your disability, you should keep in mind that certain consequences could follow from this. It could lead to the following:

• If your disability becomes more acute and starts impacting on how you do the job it may be difficult to implement work related adjustments quickly
• If your disability is affecting the way you do your job , an employer may perceive this as poor work performance and work related adjustments may not be implemented
• At a later date you will not be able to show that your employer has treated you less favourably because of your disability

It is important to know that where an employee has decided not to disclose their disability, employers are not responsible for providing employment related adjustments.

This fact sheet explains the law in NSW about Disclosing Your Disability. The information contained in this fact sheet is only intended as a guide and is not a substitute for legal advice. If you think you are experiencing discrimination because of your disability you should seek legal advice (revised February 2009).