Employers warned of jump in stress claims under new disability discrimination laws

The introduction of new disability discrimination laws will increase the obligations of employers to help staff who are returning from stress leave, a workplace legal expert says.

Lesley Maclou, partner at Harmers Workplace Lawyers, says stress claims have been steadily increasing over the last decade and now cost Australian business around $200 million a year.

But that could be set to rise. Maclou says the Disability Discrimination Act, which was passed by Federal Parliament last month, has big implications for employees who are dealing with stress-related illness.

She says the new laws mean employers hit with a claim of disability discrimination are under the burden of proof – that is, employers are now required to prove that they have made “all reasonable adjustments to make amends and arrangements” for a stress-affected employee to return to work.

Maclou says employers should start this process by indentifying the cause of the original stress. The employer then must put in place strategies to manage this problem, such as providing the stressed worker with confidential help from a third party such as a counsellor.

“For example, if a fellow worker is causing an employee significant stress and harm, the employer should consider rearranging the team in which the employee works so there is limited or no interaction with that colleague, as well as ensuring the employee that is allegedly causing the issues also has access to training and assistance,” Maclou says.

Other strategies may include reducing an employee’s hours of work or workload or engaging a workplace rehabilitation coordinator.

Maclou says employers faced with claims of discrimination stressed employees will only be able to defend their failure to take action if they can prove that the required adjustments to their workplaces would place a significant burden or an ‘unjustifiable hardship’ on that business.

“The message for employers is clear. Any time an employee takes stress leave, employers should be prepared to take all necessary steps in order to help that employee rehabilitate themselves into the workplace.

“A failure to do so will likely see the employer exposed not only to a claim under the new Discrimination Act, but also potentially in breach of its common law and occupational health and safety obligations. The cost to the business can be significant.”