Exceptions for unjustifiable hardship

Exceptions for unjustifiable hardship Exceptions for Unjustifiable Hardship

An education provider does not have to carry out an obligation under the Education Standards if that obligation would cause it unjustifiable hardship.

Some reasons that might be unjustifiable hardship include:

  1. Cost - Sometimes the cost of an obligation is so high that an Education provider can not do it. For example it might cost so much money that the education provider would go bankrupt.
  2. Safety - Sometimes carrying out an obligation might put other people at risk. It may mean that other people taking part in the course are unsafe.

An education provider should be careful not to use this exception without proper consultation and research. If an education provider wants to use this exception, then the education provider has to prove that the obligation would cause it unjustifiable hardship. This might mean the education provider has to prepare and show financial reports, bank account details, impact statements and quotes to prove it is fair to use this exception.

Working out if something causes 'unjustifiable hardship' is similar to working out whether an adjustment is 'reasonable'. It requires an education provider to think about all the circumstances of a particular case. For example, it must think about:

  1. Any benefits or disadvantages that will be caused by carrying out the obligation
  2. The effect of the disability of the student
  3. Its financial position and any costs that it will need to pay to carry out the obligation

Really, this means that an education provider must think about how to remove discrimination as far as possible and how to respect the rights and interests of all people involved.

The exception of unjustifiable hardship applies to both the obligation to make reasonable adjustments and the obligation to consult. However, the exception of unjustifiable hardship does not apply to the obligation to eliminate harassment and victimisation. People should never be harassed or victimised and an education provider should always do everything possible to make sure that it does not happen.

Although the process of working out reasonable adjustments and unjustifiable hardship is similar, they are not the same thing. On the one hand, working out whether an adjustment is reasonable looks more at whether the adjustment will adequately meet the needs of the student with disability without impacting too much on the needs of other people. On the other hand, working out whether an obligation will cause unjustifiable hardship looks more at whether the obligation would cost the education provider or other people so much that it would be unfair to force the education provider to carry it out.

The difference between reasonable adjustment and unjustifiable hardship

Reasonable Adjustment

Reasonable adjustment is concerned with whether the adjustment meets the need of the person with disability without impacting too much on the needs of other people.

Unjustifiable hardship

Unjustifiable hardship focuses on whether the adjustment will cost the education provider or other people involved so much that it would be unfair to make the education provider carry it out.

Case Studies

Unjustifiable hardship in Annie's case

Case Study - Annie Case Study - Annie

Annie is a student with Attention Deficit Hyperactivity Disorder (ADHD). She completed her final exams last year. She did really well at her high school and says that this was because her school had small classes and the teachers were well-trained to understand her disability.

Now she is enrolled in a course at a university. She is not doing very well in her assessments and asks the university to move her to a small class instead of having to go to large classes filled with many students. She provides the university with reports from her high school teachers that say small classes are a good adjustment for Annie. The university says that it probably needs to improve the training of its lecturers in disability awareness, in particular ADHD. However, the university refuses to change the class structure and create a small class for Annie. It says that doing this would cost it too much and it would not be fair to the other students who would still have to go to the large classes. Also, it says it doesn't have enough staff to make this adjustment and that class timetables couldn't be changed without a lot of trouble. The university says a review of available classrooms shows that the only spare classrooms are in a completely different part of the university grounds. Here, the university is using the exception of unjustifiable hardship to refuse to provide a small class for Annie. If this went to court, the university would need to show reports, review notes and written reasons to try to prove a small class would cause unjustifiable hardship.

Unjustifiable hardship in Rory's case

Case Study - Rory Case Study - Rory

Rory is deaf and wants to attend a free course in needle work offered at the local community centre. She needs interpreters to attend the course.

The centre says it would like to provide interpreters and it has no problems with interpreters attending. It agrees that this is a necessary and reasonable adjustment for Rory. But the centre has no funds available for the course as it is free - even the teacher is a volunteer. The centre tells Rory that it would cause it unjustifiable hardship to pay the interpreters' fees.