Post-Pandemic Workplace Design and the Plight of Employees with Invisible Disabilities: Is Australian Labour Law and Anti-Discrimination Legislation Equipped to Address New and Emerging Workplace Inequalities?

Abstract

In 2020 the COVID-19 pandemic has re-shaped the way we work. To help contain the virus employees made a mass migration from working in offices to working remotely from home, but this mass shift to working from home is expected to have a lasting impact on workplace design even after the virus is contained. Modern and post-pandemic workplaces are expected to be increasingly “hybrid” and use shared workspaces to permit worker fluidity between the office and the home. This article argues that shared and fluid working arrangements significantly disadvantage and disproportionately affect employees with “invisible” disability in various ways, yet the outdated design of Australian labour law and anti-discrimination law is ill-equipped to deal with these new and emerging inequalities in the workplace. The assessment of the law in this article culminates with proposed drafting improvements to the Fair Work Act 2009 (Cth) and the definition of indirect discrimination in anti-discrimination legislation, but it exposes the defences to discrimination as the most problematic features of the legal framework. Whilst defences to discrimination intend to strike a balance between the interests of employers and employees, the analysis in this article shows that modern and post-pandemic workplace design significantly disrupts that balance to skew the legal tests to favour employers. Modernising the defences to discrimination to achieve greater equilibrium is a very complicated question and will be the focus of planned future empirical research. This article does, however, propose that the legislative framework can be updated by introducing proactive measures designed to enhance “person-environment fit” in workplaces. This may not only mitigate the disadvantaging effect of hybrid workplace design on employees with “invisible” disability, but also reduce reliance on the complaints-based system and help circumvent problems posed by the defences to discrimination.