Employers need to take steps to avoid a discrimination claim and understand how to defend them. Discrimination claims can be challenging for employers to defend. This is because there is a reverse onus of proof and the employer must prove they did not discriminate.
In Australia, discrimination claims are typically handled by the Fair Work Commission under ‘general protections’ claims. They can also be dealt with by the Australian Human Rights Commission.
Employers are required to defend allegations that they have breached workplace laws relating to discrimination. This can include claims that an employee was dismissed or unfavourably treated at work due to a discriminatory reason.
employment lawyers, explores proactive strategies that can assist businesses in successfully defending these claims.
The Fair Work Act 2009 prohibits employers from taking adverse action against employees or prospective employees due to certain protected attributes, such as race, sex, disability, age, pregnancy and religion, among others.
Adverse action includes actions by the employer such as:
Employers defending a claim will need to demonstrate that they have not breached a general protection. They will also need to show that any action taken against an employee or potential employee was for reasons unrelated to the protected attributes, and in accordance with workplace laws. pregnancy discrimination in the workplace in our article.
Defending a discrimination claim requires employers to follow specific steps to protect their business and employees.
With the Fair Work Commission overseeing such cases, employers must ensure they have a solid defence. Employers can increase the chances of successfully defending a discrimination claim by:
Here’s what you need to know.
Prevention is the best defence against discrimination claims. Regular training on discrimination laws, unconscious bias, and workplace behaviour is essential to ensure employees and managers understand their obligations.
Employers should have well-documented workplace policies that align with anti-discrimination laws and promote a culture of inclusion and respect.
Ideally, if you follow proper workplace policies, the likelihood of a general protections claim for discrimination occurring is greatly reduced.
Proper documentation is crucial when defending any workplace claim, especially in discrimination matters. This is because there is a reverse onus of proof. Once an employee makes a claim for adverse action:
Employers must maintain thorough records of key employment decisions, such as reasons for recruitment, promotions, disciplinary actions, and terminations. These records should clearly outline the non-discriminatory reasons behind each action.
Employers should have accessible and transparent complaint procedures to internally handle concerns about discrimination.
If an employee raises an issue, this procedure gives employers the opportunity to address it promptly and fairly. Further, the employer must follow the procedure and not apply it differently across different staff.
Additionally, demonstrating that an employer attempted to resolve matters internally, and in accordance with its procedures, can support a defence to a discrimination claim.
The FWC often encourages conciliation, where both parties attempt to resolve the issue before a formal hearing.
Employers should be prepared to negotiate in good faith during this stage, especially if they identify an error on their part. Successfully resolving the matter at conciliation can save time, costs, and avoid the stress of litigation.
If conciliation fails and the matter proceeds to a formal hearing, employers must prepare a strong legal defence.
This involves gathering evidence, witness statements, and any documentation supporting the employer’s non-discriminatory reasons for their actions.
Legal representation is crucial at this stage to present the case effectively and align with procedural requirements of the FWC.
Learn more about the FW Act in our guide for employers
Discrimination can include when an employer behaves in a way that harms a person because they have a certain feature or attribute.
A person’s ‘features and attributes’ can include:
Section 351(2) of the Fair Work Act 2009 outlines actions by an employer that may not be considered actions of discrimination. This includes where action is taken that is:
If a discrimination claim reaches a hearing with the FWC, both parties will present their case. This may include presenting witness statements, emails and file notes. The FWC will make a decision based on the evidence provided, so it’s essential to have a strong legal strategy and representation.
By following these guidelines and proactively addressing discrimination risks, employers can significantly strengthen their ability to defend discrimination claims at the FWC.
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