How to test for ‘inherent requirements’ of a role in a disability context

It's important to start by looking at the indivisible building blocks from which a role starts

How to test for ‘inherent requirements’ of a role in a disability context

On Monday, HRD looked at whether or not it is lawful to refuse to hire somebody with a speech impediment.

Ross Jackson, Partner at Maddocks, said that as with all discrimination issues involving employment, it’s important to start by looking at what the job requires.

These are called the ‘inherent requirements’ under the federal legislation or the ‘genuine and reasonable requirements’ under the state legislation in Victoria.

Jackson said that what is important for all employers to look at is ‘what does this job actually require as the indivisible building blocks from which it starts’?

“In other words, one way I test for an inherent requirement is to see if we took that requirement out of the role would it be like pulling a brick out and the whole wall collapses? Or would it be still alright to do without that brick?”

Jackson said there have been plenty of cases which have looked at what are inherent requirements, and the easiest way to distinguish it is to say ‘what are the things we do just because it’s convenient?’ As compared to ‘what are the elements of the job that are so fundamental we just can’t change them?’

“The requirement of the job might be for a person to be able to speak and be understood in the English language, for example,” said Jackson.

“It might be the case that there is no way we can get around the fact that this lecturer has to speak clearly in the English language so that his or her audience can understand what they are saying verbally.”

The next question is ‘can the applicant with a speech impediment be able to do that job if we provide reasonable adjustments and, if so, what might they look like?

What could we afford? Could we afford a screen? Could we afford some voice-enhancing mechanism? What would be the impact of the other people involved - the audience of students, for example? Is it something that would actually enable the person with the speech impediment to actually perform the role of lecturer, would it work?

“So the critical thing is what does the job require, are there any reasonable adjustments that could be made that enable this person with a speech impediment to perform the role and are they reasonable for us considering the nature of the disability, the nature of the workforce, the resources, the impact on others, etc.,” said Jackson.

What that boils down to is "act on evidence, never on assumptions", he said.

“Never assume that because someone has a particular disability, such as a speech impediment, that they will not be able to do the job,” he said.

“That’s just as fraught as assuming that because a woman is a primary carer she won’t be able to get to 8:30 meetings."

Jackson added that if you have got someone who is applying for a role – such as a lecturer - who clearly has a speech impediment it is perfectly legitimate to raise the issue that the job requires clear verbal communication.

Therefore it’s acceptable to ask: Do you think you have the ability to perform that aspect of the role? Have you got any example you would like to share with us on how that might work? Technologies or whatever that might be?

This is part two of our articles on the legalities of hiring somebody with a speech impediment. To view part one, click here.

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