This blog post summarises the key insights from the latest Virtual Education Session (VES) led by Fay Calderone, who was invited to speak at the session in October 2023.

Fay Calderone is a partner at Hall & Wilcox and a highly experienced employment law specialist with a 20-year track record representing employers across diverse industries.

This article includes an overview of workplace issues and culture, legal aspects, and the importance of creating inclusive environments for employees living with scleroderma. 

For more in-depth information, please download our free Scleroderma and the Workplace brochure.

Culture of an inclusive workplace

At work, we often hear the saying, ‘Culture will eat compliance for breakfast,’ stressing the profound impact workplace culture has on observing rules and policies. 

This is particularly relevant when considering employees living with scleroderma where challenges are distinct and understanding and support are of utmost importance.

An organisation’s culture is shaped by the behaviour that leaders either encourage, discourage, or tolerate over time. 

One key element in shaping workplace culture is the role of bystander action. 

Having policies in place isn’t enough; employees and leaders need to promote inclusivity and address discrimination when they see it actively. 

While diversity is about having different people in the workplace, inclusivity goes further. It’s about ensuring that individuals feel like they belong and can be themselves at work. 

In the context of scleroderma, this means creating an environment where employees with the condition feel supported and empowered to perform at their best.

Workplace issues and barriers

Dealing with workplace issues such as discrimination and harassment is very important for creating a healthy work environment. 

Sadly, some employees would rather quit their jobs than confront these problems. 

Discrimination can manifest throughout the employment lifecycle, from recruitment to demotion, impacting various aspects of an employee’s career. 

Types of discrimination:

  • Direct discrimination – occurs when someone is treated less favourably because of a characteristic that is protected by law. This could include factors such as race, gender, age, or disability.  For example, a qualified job applicant with scleroderma is denied a position solely due to their health condition. This constitutes direct discrimination, as the individual is treated unfavourably.
  • Indirect discrimination – refers to policies or rules that, while not targeting a specific characteristic, unintentionally disadvantage individuals with a particular characteristic. For example, holding meetings on the top floor of a building without providing an elevator for disabled access indirectly discriminates against people with disability.

Disability discrimination:

  • Disability discrimination – is specifically related to the treatment of individuals with disability. The federal law covers various subcategories of disability, and individuals with conditions such as scleroderma may fall under multiple subcategories due to the diverse symptoms associated with their condition.
  • Right to seek adjustments – Individuals with disability, including those with scleroderma, have the right to seek reasonable accommodations and adjustments in the workplace if they experience discrimination or face barriers to equal opportunities.

Harassment based on disability, including offensive jokes and actions causing hurt or humiliation, is addressed by the law. Such harassment often stems from initial discrimination and can escalate over time.

Legal protection and implications

Employees living with disability in Australia are not legally required to disclose their disability to their employer. 

However, it can be beneficial to discuss their disability in situations where workplace adjustments are needed for safety and productivity. 

Disclosure may be necessary if the disability affects the employee’s ability to perform their job’s inherent requirements.

Under the Fair Work Act 2009, employers are prohibited from taking adverse actions against employees based on their physical or mental disability, which can include termination, disciplinary actions, or discrimination.  

This protection is upheld as long as the employee provides a medical certificate for illness or injury. 

Once an employee exhausts their paid personal leave and is absent for over three months on unpaid leave, this protection may no longer apply, but it does not mean that an employer can automatically dismiss an employee. 

Under the Disability Discrimination Act 1992 (DDA), it’s generally unlawful to dismiss an employee due to illness or injury unless reasonable adjustments would create ‘unjustifiable hardship’ for the organisation.

Meanwhile, flexible working arrangements, including changes in hours, work patterns, and locations, are permitted in Australia. 

Employers can only refuse such requests if they have reasonable business grounds, such as cost, impracticality, loss of efficiency, or customer service impact.

Work health and safety

Work health and safety is a crucial aspect of employer responsibility, alongside providing reasonable adjustments for employees with disability. 

Employers must prioritise the physical and mental well-being of their workforce and take practical measures to ensure a safe working environment. 

If you have employees with scleroderma, seeking the guidance of an occupational health and safety professional can be highly beneficial. 

These professionals can help you navigate your obligations regarding employment and health and safety laws.

A work health and safety professional can assist in various ways, including:

  • Identify necessary adjustments, such as altering job tasks, adapting the work environment, and providing equipment or assistive technology to support employees’ needs.
  • Offer options for remote or hybrid work arrangements to safeguard the health and safety of employees, particularly those with compromised immune systems.
  • Develop a return-to-work plan that facilitates a smooth transition for employees, ensuring they can perform their duties effectively while maintaining their well-being.
  • Conduct risk assessments to ensure that employees are engaged in work that aligns with their health and safety requirements.

Inclusive and supportive workplaces are increasingly recognised as essential. 

While the interpretation of inclusivity may vary among organisations, the key lies in ensuring that every employee particularly those who are living with scleroderma feels valued, can express their true selves at work, and receives the necessary support to excel in their roles.

If you’d like to gain firsthand knowledge, our National Education Sessions and Virtual Education Sessions are available to you at no charge. Our Virtual Education Sessions are held every month through Google Meet.

These sessions provide an opportunity to engage with medical professionals and seasoned legal experts who will address common inquiries about scleroderma and related topics.