A decision by the Queensland Court of Appeal highlights why employers must take into account the needs of workers with an acquired brain injury, in order to avoid being considered to have discriminated against them.
In Chivers v State of Queensland (Queensland Health), the Court of Appeal heard a case pursued by Ms Chivers, who was employed as a registered nurse with Queensland Health (QH). She had an acquired brain injury from a horse riding accident in 2004. As a result of her accident, she experienced headaches and nausea and was unable to work night shifts.
QH initially accommodated her working requirements. However, despite QH’s apparent support of Ms Chivers, her probationary period was extended on three separate occasions, ostensibly to allow an assessment of her ability to work nights. Eventually, after one year, Ms Chivers resigned and claimed that QH had discriminated against her by failing to confirm her employment.
In its defence, QH argued that working nights was a ‘general occupational requirement’ for registered nurses who were employed in 24/7 wards, and that Ms Chivers failed to comply. But Ms Chivers presented evidence of other nurses in permanent employment who were not required to work across all shifts, despite being employed in the same 24/7 wards.
The Court of Appeal held that the ability to work across all shifts was not a genuine occupational requirement.
Although there can be specific challenges when working with people suffering from an acquired brain injury, this does not mean that they can or should be discriminated against in the workforce – including when it comes to conducting workplace investigations.
What is an acquired brain injury?
Acquired Brain Injury (ABI) is the term used for any brain damage, which is sustained after birth. Causes include physical head trauma, strokes, brain tumours, brain infections, alcohol and drug abuse or neurological diseases such as Parkinson’s disease. This term is used to describe both permanent and temporary injuries.
Those suffering from an ABI are likely to experience ongoing difficulties with:
- Processing information at speed
- Problem Solving and lateral thinking
- Organisation of thoughts and activities
- Self-control and monitoring
- Insight into personal behaviours
- Emotional lability
- Restlessness (physical and emotional)
tips for managers of employees with an abi
Perhaps the greatest potential challenges are difficulties with memory, cognition and communication. When communicating with people with a disability, it is important for managers not to focus on the potential restrictions of their employees, but to consider how to get the best out of their workers.
In the context of an ABI, this is likely to take the form of:
- Flexible working arrangements, such as part-time or reduced hours, or the ability to call in sick with short notice. From a recruitment perspective, one of the best ways to ensure that everybody’s needs are met is to ask potential employees who have declared an ABI to provide any assessment or medical treatment reports which could provide guidance as to their capacity and daily needs. New employees should be encouraged to undergo a work trial period, during which both employer and employee can consider what tweaks might be necessary to ensure that the arrangement works optimally for both parties.
- Developing appropriate risk mitigation strategies. This includes ensuring that both employer and employee are aware exactly what is and might be required of the employee with the ABI, so that their role is clear. Other strategies include making sure that workers compensation and medical leave certificates are appropriately filled in, even if the employee is required to take a lot of sick leave. This will help to ensure that events are well documented in case a dispute arises.
- Ensuring that instruction manuals and written directions are easily accessible and clear. People who suffer from an ABI may require frequent reminders and mnemonics to perform their job to their full ability, and facilitating this will help an employer to best unlock an employee’s potential.
- Implementing a workplace buddy system. A dedicated buddy can not only provide ongoing emotional and personal support, but also assist with simple memory jogging and reminders when needed.
undertaking workplace investigations involVing an ABI
The difficulties inherent in the workforce for people suffering from an ABI are magnified when a workplace investigation needs to be conducted – regardless of whether the employee with an ABI is the victim, the respondent or a witness.
In order to counter difficulties associated with an ABI, employers engaged in investigative interviewing should consider strategies including:
- Prior to conducting an interview with a person with an ABI as part of an investigation, the investigator should make an assessment about the witness’ communication, including skills, abilities and whether they use any types of communication aids.
- Talk to other staff or human resources to obtain some further information that can assist in understanding how best to work with the employee with an ABI.
- Reducing distractions during the interview (for example, make sure the radio is turned off and there are no unnecessary staff sitting in on the interview).
- Using short and simple sentences to avoid confusion, especially when putting allegations to the interviewee. This should also include presenting information slowly and one bit at a time.
- Giving frequent reminders of the next step – this is particularly important from a procedural perspective. From an employer’s perspective, this is also important to avoid any allegations of abuse of process or discrimination.
- Being prepared to repeat information as often as necessary until the employee clearly understands what is being conveyed.
- When the employee is clearly distracted, ensuring that they are brought back to focus on the matter at hand.
Interviewing an employee with an ABI is challenging and can be very difficult to get right. If you require a highly experienced interviewer to assist with a workplace investigation involving a person with an ABI, or any other disability, contact our investigations team today for expert assistance.