Disability and the inherent requirements: what the Disability Discrimination Act asks of hiring

Section 15: the hiring stage

“(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:

(a) in the arrangements made for the purpose of determining who should be offered employment; or

(b) in determining who should be offered employment; or

(c) in the terms or conditions on which employment is offered.”

Disability Discrimination Act 1992, s 15(1), Compilation No. 40 (1 July 2026)

The words “acting or purporting to act on behalf of an employer” bring a person running a hiring process for an employer inside the section, alongside the employer. Paragraph (a) reaches the arrangements, the process itself, not only the final choice. Section 15(2) carries the same rule on into employment, for an employee’s terms, opportunities, dismissal and any other detriment. One carve-out sits in s 15(3): paragraphs (1)(a) and (b) do not apply to employment to perform domestic duties on the premises where the person offering it lives.

Section 21A: the inherent requirements exception

“(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discrimination relates to particular work (including promotion or transfer to particular work); and

(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.”

Disability Discrimination Act 1992, s 21A(1)

Subsection (2) says that, in deciding whether the person would be able to carry out the inherent requirements, three factors are to be taken into account: the person’s relevant training, qualifications and experience; if they already work for the discriminator, how they perform there; and “any other factor that it is reasonable to take into account”.

Subsection (4) limits it further: apart from decisions about who should be offered promotion or transfer, it does not cover discrimination in access to promotion, transfer, training or other benefits, or other detriment, under the listed paragraphs, nor discrimination by registered organisations under s 20.

Five questions, in the Act’s words

Read together, ss 21A, 4(1) and 11 raise these questions in turn. Each step uses the Act’s own terms.

1. Is it about particular work?

   The exception starts only where the discrimination “relates to particular work (including promotion or transfer to particular work)” (s 21A(1)(a)).

2. What are that work’s inherent requirements?

   The question is about “the inherent requirements of the particular work”, the work in question rather than work in general (s 21A(1)(b)).

3. Could the person do them with reasonable adjustments?

   The test assumes the adjustments are made: the person must be unable to carry out the requirements “even if” the employer, principal or partnership made reasonable adjustments (s 21A(1)(b)), judged on the factors in s 21A(2).

4. Is an adjustment reasonable?

   The Act defines it from the other end: “an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person” (s 4(1)).

5. Would it impose unjustifiable hardship?

   That is decided under s 11, set out below, and the person claiming the hardship has to prove it.

Section 11: unjustifiable hardship

“(1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

• (a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
• (b) the effect of the disability of any person concerned;
• (c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
• (d) the availability of financial and other assistance to the first person;
• (e) any relevant action plans given to the Commission under section 64.”

Disability Discrimination Act 1992, s 11(1)

The Act’s example adds that the benefit or detriment in paragraph (a) includes that “likely to accrue to, or to be suffered by, the community”. And s 11(2): “the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship”.