NSW Disability Discrimination Legal Centre

In general

• Employers should recruit based on your ability to perform the essential activities of the job.
• If you can do the essential activities (also called the ‘inherent requirements’) of a job, you should have just as much chance to do that job as anyone else. In other words, your disability should not be something that employers take into account when deciding whether or not to hire you or to terminate your employment.

Defining the ‘inherent requirements’ of a job

• The inherent requirements will depend on the particular circumstances of the job. Every job will have different inherent requirements.
• Relevant factors when identifying the inherent requirements of a job may include:
  • the work required to be performed by employees in the position and in similar positions
  • if an inherent requirement is written in a duty statement (that is, a statement which sets out the key tasks and activities of a job), but is not actually performed in practice, it will not be regarded by the law as an inherent requirement
  • duties or tasks that need to be performed in an emergency or at periods of high workload may be regarded as inherent requirements even if they only happen very rarely
  • the circumstances in which the work is performed or to be performed
  • the terms of the relevant Industrial Awards, employment agreements, industry standards and policies of the employer
  • compulsory requirements which may apply because of the provisions of another law, such as those in relation to occupational health and safety. In fact courts have confirmed that it is an inherent requirement to be able to carry out your job safely

Determining whether an employee can satisfy the inherent requirements of the job

Assessing ability to perform job requirements

• Examinations or actions reasonably intended to determine your ability to perform the inherent requirements of the relevant job are lawful under the Disability Discrimination Act 1992 (Cth). For example, fitness tests for people applying for the armed forces
• However, employers should ensure that inquiries or examinations intended to determine your ability to perform inherent requirements are a reasonable means for this purpose and are based on the genuine inherent requirements of the job
• Employers should also ensure that they are examining all prospective employees in the same way

Relying on a medical report in making decisions about inherent requirements

• Independent medical assessments can be a good starting point to help resolve disputes about whether you can perform the inherent requirements of a job
• However, simply relying on a medical assessment will not remove the employer’s own responsibility for making decisions about whether you can perform the inherent requirements. At the end of the day it is a decision for the employer
• Employers should also ensure that any medical advice they are relying on remains up to date and relevant to the current inherent requirements of the job. Employers should be as transparent as possible in this process and provide unsuccessful applicants or employees with written reasons for decisions

Meeting safety standards is an inherent requirement of the job

• The inherent requirements of a job are not restricted to performance of the physical tasks involved in the job. The ability to work safely and meet reasonable occupational health and safety standards is an inherent requirement of all jobs

Reasonable adjustment must be taken into account

• In determining whether you can perform the inherent requirements of a job, an employer must consider whether you could perform those requirements with the assistance of a reasonable adjustment (made by reason of their disability), including adjustments to work facilities, equipment, practices or training
• If such an adjustment would enable you to perform all the inherent requirements of the job and the adjustment does not cause the employer unjustifiable hardship, then the employer is obliged under the law to make the adjustment

This fact sheet explains the law in NSW. 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).