In the recent case of Police Association of New South Wales v Commissioner of Police, New South Wales [2010] NSWADT 56, an employee was awarded $11,831 after successfully proving that his employer had discriminated against him on the basis of his presumed asthma disability.

Mr Vary had held the rank of Constable in the New South Wales Police Force since 2005. Having been a member of the Operational Support Unit, in 2007, Mr Vary applied to join the State Protection Support Unit (SPSU). A precondition of admission into the SPSU was that the applicant pass various medical and fitness assessments including exposure to CS gas (also known as tear gas).

In accordance with the New South Wales Police Force's workplace policy, MrVary was denied the opportunity to undergo the exposure test in order to gain admission. A workplace policy provided that any police officer "who has or has disclosed a history of asthma, including childhood asthma, is not permitted to undertake the exposure test."

In an attempt to complete the exposure test to gain admission to the SPSU, MrVary provided doctors' reports in relation to his fitness. These reports revealed no evidence that MrVary suffered from asthma. Regardless of these results, MrVary was unable to undertake the exposure test on the basis that he "had possibly suffered childhood asthma".

The decision of the Tribunal in this case provides a timely reminder for employers to ensure that workplace policies are not themselves discriminatory or otherwise applied in a discriminatory manner.

While the premise of a particular policy may on its face be legitimate (in this case to manage health and safety risks), under anti-discrimination law actions and decisions which are taken in accordance with a policy may nonetheless give rise to unlawful conduct.

In the circumstances of Mr Vary, his employer incorrectly made presumptions about whether he in fact had a disability and after making an inaccurate presumption treated him detrimentally because of it. It is important for employers to rely on objective evidence and materials when it comes to issues of managing health and safety. A failure to do so can expose an employer to discrimination risks.

This story is available in full at Mondaq.