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CQUniversity research reveals current law does not address new and emerging workplace inequalities

Published:16 December 2021

Dr Angelo Capuano

The COVID-19 pandemic has reshaped the way people work.

Despite lockdowns being lifted, many people have been able to negotiate different working arrangements which no longer mean being permanently based at an office.

Modern and post-pandemic workplaces are expected to be increasingly ‘hybrid’, using shared workspaces to permit worker fluidity between the office and the home.

But does current law accommodate for the emerging trend?

Not according to CQUniversity law academic Dr Angelo Capuano, whose article titled ‘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?’ will be published in a forthcoming issue of the UNSW Law Journal in 2022.

“As we re-open from a setting in which working from home was suddenly normalised due to COVID-19, I think that moving forward we can expect a merging of the office and the home in our working week,” Dr Capuano explained.

“The problem with this new way of working is that, as I argue in my article, it disadvantages and disproportionately effects employees with ‘invisible’ disability, therefore creating new forms of workplace inequality,” he said.

Dr Capuano said ‘invisible’ disabilities could include a host of conditions which were not apparent from looking at a person.

“They can include a wide variety of physical, sensory, immunological and other conditions,” he explained.

“Many medical conditions are invisible, and it is estimated that 90 per cent of all disabilities are ‘invisible’. So, we may have a colleague with a disability, and we may not even know it.”

Dr Capuano said while employees with ‘invisible’ disability were disadvantaged by new and emerging post-pandemic workplace design, his research revealed that Australian labour law and anti-discrimination law was not equipped to deal with these workplace inequalities.

“That is, existing law does not adequately address the kind of inequalities which employees with ‘invisible’ disability can face in modern and post-pandemic workplaces. This is a serious problem.

“My article exposes how the law provides inadequate protections for employees with ‘invisible’ disability, not because this is the law’s intended operation, but because the law has failed to keep up with developments in workplace design and our evolving understanding of medical conditions."

Dr Capuano said new ways of thinking about disability, championed in particular by the World Health Organisation (WHO), turned attention to the way contextual factors create disability, so a person is only ‘disabled’ if their environment was not equipped to suit their condition.

“Put more simply, most employees with various conditions are only ‘disabled’ from their conditions if employers allow workplace settings to have this disabling effect. So, we need to think about how law and workplace policy can be used to mitigate risks of discrimination or inequality which arise from the way workplaces are now being designed, and how they will likely be designed into the future.”

Dr Capuano’s article proposes law reform, the development of proactive measures and workplace policy designed to address these new and emerging workplace inequalities and prevent discrimination before it happens, with a view to creating a fairer post-pandemic world of work.