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Where am I now? Lawlink > Anti-Discrimination Board > Publications > Q & A: Carers responsibilities - Equal Time, May 2001
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Q & A: Carers responsibilities - Equal Time, May 2001
 Introduction
If I arrange with an employee that they work from home because of their carers responsibilities, what are my obligations?
Do I have to allow employees to work from home, if any modifications required will cost me too much?
I don't want to allow a particular employee to work from home because of their poor performance. Is this discrimination?
I am in the middle of hiring new staff, and the cost of accommodating the best person's carers responsibilities is too high. Do I have to offer them the job?
As a State-wide organisation, when we recruit staff, an essential requirement is that they are prepared to be transferred and work anywhere in New South Wales. However, when the time comes many people do not want to go. If we make them move, is this carers responsibilities discrimination?
Introduction
Since 1 March 2001, when carers responsibilities started as a new ground of discrimination under the Anti-Discrimination Act, many employers have contacted the Board to help with specific questions 
When an employee works from home, you must ensure that the new location and any equipment provided meets occupational health and safety (OH&S) requirements. You may need to send an expert to assess the suitability of the home and any adjustments that may need to be made. You may also need to check your insurance cover to ensure that you have adequate workers compensation and public liability insurance cover for employees working from home.
Do I have to allow employees to work from home, if any modifications required will cost me too much?
If you refuse a request to work from home, the employee may make a complaint to the Board on the ground of carers responsibilities discrimination. If you can show that refusing the request is necessary for you to be able to comply with OH&S law then you may have a defence to a discrimination complaint. Note that OH&S law places a high onus on you as an employer to maintain a safe system of work and you should get some good advice on your positions under these laws. Under the Anti-Discrimination Act, in cases of hiring and firing, you will have a defence if you could show that setting the person up to work at home would cause unjustifiable hardship.
If you refuse requests to work from home, a person with carers responsibilities may make an indirect discrimination complaint. The person making the complaint would need to prove that the requirement to work from office and not home was not reasonable in all of the circumstances. Courts will look carefully at all the circumstances including your reasons for refusing the request, for example an argument that the home was inherently unsuitable and would require adjustments that were prohibitively expensive to enable the person to work at home. I don't want to allow a particular employee to work from home because of their poor performance. Is this discrimination?
It depends. If you would let a person with the same kind of poor work performance but no carers responsibilities work from home then you would be discriminating against the person directly on the ground of their carers responsibilities. You should also look at whether the poor performance is related to their carers responsibilities. in many instances where flexible work practices are not available, the work performance of people with carers responsibilities can be affected. More flexible practices, such as working from home, may improve performance in some cases.
Courts look carefully at the evidence from the employer and employee in these kinds of cases. As with all human resource issues, good practice will mean that the problem has been identified with the employee, they are aware of the concerns that you have, the causes for the poor work performance have been properly assessed and the person has been given a fair opportunity to rectify the problem.
If you have properly assessed the work performance problem you will be in a better position to make decisions that avoid discrimination and address the work performance problem. I am in the middle of hiring new staff, and the cost of accommodating the best person's carers responsibilities is too high. Do I have to offer them the job?
In relation to hiring decisions only, you do not have to provide special arrangements if it would cause you unjustifiable hardship to provide the arrangements. For example, it may be too costly for an organisation of your size and financial circumstances to provide the required arrangements or it might seriously harm your business to provide them.As a State-wide organisation, when we recruit staff, an essential requirement is that they are prepared to be transferred and work anywhere in New South Wales. However, when the time comes many people do not want to go. If we make them move, is this carers responsibilities discrimination?
This requirement may be harder for a substantially higher proportion of people with carers responsibilities to comply with than people without carers responsibilities and so may be indirect discrimination on the grounds of carers responsibilities. If a person can show that they cannot comply with the requirement, that substantially more people with carers responsibilities cannot comply with it and the requirement is not reasonable in all the circumstances then you will be discriminating against that person. The reasonableness issue is decided by looking at all the circumstances. For example it will include analysing the reasons for you having the requirement, the kind of service you are providing and the impact on the person who cannot comply with the requirement.
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