Introduction
On 19 November, a friend sent me a link to an ABC story taken from the ABC television show Q&A. It’s not a show I am a fan of. The story concerned a young woman with epilepsy who was sent home after experiencing a seizure at work – and was required, subsequently, to work at home. He wanted to know what I thought.
In my reply to my friend, I made an assumption that the employer was a public sector agency. I did this to frame my response in a hypothetical understanding of the context. The story provided no context, no details.
What’s the Story?
A person with disability (epilepsy) is obliged to work from home by an unknown employer for reasons that are not known – beyond the fact that “she fell off her chair at work as a result of a seizure.” We are induced to believe that having a seizure at work is enough to trigger a requirement that the person works from home on an ongoing basis. But is that true? You won’t get that information from the article. Why not? Surely good journalism would require that?
So, for sure, a staff member with disability who prefers to be in the workplace will not be happy to be obliged to work from home. But was the decision to require her to work from home unreasonable or unfair? I don’t know the answer. But the ABC story is written such that the assumption of unfairness must be arrived at. It was unfair and discriminatory, we are told.
From the article we read that the host of Q+A asked the mother “if the workplace had given a medical justification for this position“?
The mother said: “There’s been three reports from my daughter’s psychologist and at the moment we’re awaiting the final one and the employer will make a decision,“
Then the article goes on with the following: “Disability advocate and musician Ms Hull levelled an accusation at the unnamed employer. “I see that as discrimination,” she said. “Just purely discrimination. She should be allowed to work there.”
There is more, but the damage has been done. Let me sum up the facts here. A young woman with epilepsy had a seizure at work and fell off her chair. The unknown employer required her to work from home for an unspecified period. During this time there have been 3 psychology reports prepared, and a third one pending before the employer makes a final decision – about what is unknown – but we may assume it is whether it is safe for the employee to return to the workplace and under what conditions.
The article opens with: “The reality for workers with a disability during the COVID pandemic was laid bare in Q +A in a case that panellist Eliza Hull labelled “pure discrimination”.”
For the ‘disability advocate’, Lisa Hull to call this “pure discrimination” is outrageous. For me this shows a lack of knowledge and tact that gives disability advocacy a bad name.
The employer has duty of care to ensure that their workplace is safe. While there are adjustments that might make a workplace safer for a person with epilepsy, if a person is at risk, no matter where they are in the workplace, adjustments may not be sufficient or reasonably affordable. The term ‘reasonable’ in reasonable adjustment refers to the cost imposed on an employer in making an adjustment.
The article described Ms Hull as a “musician”, which may suggest she is not familiar with office environments.
This is what I told my friend in an email.
In this case, what’s the agency’s response? It could simply be that there are too few staff working in the office to assure there is support due to COVID restrictions.
Return to office is staged, with far reduced staff. It would be reasonable to believe that in the event of the staff member having a seizure, there would not be staff in that area to be alerted and to provide assistance.
Offices can be dangerous places if there is a high risk of a seizure and the person is not wearing a helmet to minimise risk of head injury. Is the woman using medication to control seizures?
A regular office has an abundance of hard and sharp edges. Anybody who falls
may risk serious injury, even with the reflexes to avoid the worst. Because of my disability I am vulnerable to falls. I have had 4 in the past 12 months – but at home. I fall because my ankles don’t work, and the slightest trigger is enough to send me toppling. I wouldn’t want to fall in an office.
To what extent is she taking care to reduce the risk of injury – as is required under WHS legislation?
This is not an accusation. The employer must affirm the person is safety conscious and is aware of risks. None of this is covered.
The short answer is that we do not know answers to key questions, and despite of our ignorance we are invited to believe that this unnamed employer is at fault. It may be, but no evidence that it is was provided.
The allegation that the employer is engaging in “pure discrimination” is unfounded and reckless.
There’s another dimension to the story that raises a warning flag of unexpressed complexity for me.
“While many Australians may crave more flexible working arrangements, audience member Lisa Burns raised fears for her daughter, who has epilepsy, and has become further isolated from the world due to her workplace labelling her an OH&S risk.”
Saying her daughter “has become further isolated from the world” suggests a deeper dimension to the story. The mother goes on to say: “She no longer takes public transport and she doesn’t chat with her co-workers.” And then she adds: “She sits on the couch at home and works.”
The experience of isolation from co-workers is something some of my former colleagues with disability are concerned about when they work from home, It’s a real concern. But it’s the sense of being “further” isolated that concerns me. I am not sure what to make of working from a couch, given the ergonomic implications.
Something Doesn’t Add Up
I suspect there is far more to this story than this 520 odd word article allows.
Two things bother me about this story.
- It makes out that a person with disability is a victim of unfair treatment – based entirely on the report that the mother of the person who is the focus of the story is unhappy about a decision made. We can all sympathise with this. But there is not the slightest shred of evidence that the decision was unfair. There is no indication that working from home is a long-term or permanent solution. In fact, it may be that the employer assessed that the risk was such that the only other solution may have been place the young woman on leave – and working from home was the best available immediate option. There are concerns possible about the lack of contact with colleagues through Teams or Zoom. This could have to do with the workplace culture or insensitive management. There could be discrimination here – but there is no evidence to back up any such claim.
- The ‘disability advocate’ does no service to the role. Disability Advocacy is a difficult role. But it is frequently intemperate and one sided – and this is a sorry instance of this. Sometimes the intransigence of employers makes extreme action the last desperate resort. But an advocate making allegations about an unnamed employer reeks of an exercise in sensationalism and leaves me suspecting that the allegation is self-serving. Of course, it could also be that key elements of the story have been excised by the author of the piece.
But Wait, There’s More
After writing the above, I checked out the Q&A show – The Great Resignation. I wanted to initially just react to the article. The part relevant to the ABC article starts at 46 mins in. This is what you wouldn’t know from the article:
- The young woman has autism as well as epilepsy. (the mother said this)
- She developed seizures as a result of anxiety and stress (the mother said this)
- When the young woman fell from the chair, she hit her head. (the mother said this)
- The mother sees the matter ‘very driven by OHS’. The HR Department is supportive, but ‘OHS’ is resistant. (this sounds like a fair balance of concerns and nothing to do with discrimination at all)
- The family is still negotiating with the employer about return to the workplace. (So, it’s a temporary situation so far – pending subsequent decision)
- The mother is concerned “If she is told she can’t work sitting on a chair, where can she work?” That’s an unreasonable and over simplified characterisation of the risk and the situation. This issue isn’t sitting on a chair. It’s the risk of a sudden seizure anywhere in the office.
The article left out the key fact of autism. This adds a vital context that makes sense of the mother’s statements. It may explain the concern the employer has re WHS – and why a psychological report was requested. There are multiple other questions that may be asked about how the employer is viewing the risk equation, but there is no detail to explore them here.
The ‘disability advocate’ was accurately and fully reported. So, I stand by my original assessment.
I am confident that there is no prima facie case of discrimination – rather a properly protective response to what is a complex situation in which the employer has a clear legal responsibility as well as social one.
If I have a possible criticism of the employer, it might be that it could have communicated more effectively with the mother to ensure she understood why it was acting as it was. This would, I imagine, have been the duty of the HR contact – to give balanced advice of desires versus risks and duties. This may have been done, and the family did not understand, or accept, the explanation.
The journalism is sloppy, because it takes a simplistic and inaccurate line on a complex human problem that deserves truth and informed awareness, not sensationalism and moralising. The article excised a vital piece of information.
The article carries the line – Help keep family & friends informed by sharing this article. In fact, sharing this article will misinform.
Conclusion
Discrimination against workers with disability is real and can, and does, have serious harmful consequences. Working from home has proven to be both a blessing and a curse for people with disability, and we need to know the difference. Protecting the psychological well-being of staff with disability is an employer’s duty. But that duty does not extend to assuring; or guaranteeing well-being. The best an employer can do is address reasonably foreseeable risks.
Misrepresenting a complex situation in a way that also pushes against a non-optional legal liability of an employer to ensure that staff have a safe workplace does no good service to anybody. To do this is ignorance, or is disingenuous and self-serving.
The right of people with disability to have equal access to employment cannot trump work health and safety considerations. A combination of autism and epilepsy, with seizures triggered by stress and anxiety, adds a dimension of risk that requires careful assessment. By agreeing to place this young woman in its workforce the employer (I think almost definitely a public sector agency) must reasonably act to secure her safety by making the workplace as safe as is reasonably possible. Contemporary workplace safety legislation also places responsibility upon employees to act in a safe manner. In this instance it’s a fair question to ask. In fact, a failure to ask the question about the employee’s capacity to act safely would be possibly negligent.
For a ‘disability advocate’ to call this situation “purely discrimination” is just plain wrong.
You can find the original article here: