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 examples of unjustifiable hardship might include:
- Cost – Sometimes the cost of meeting an obligation is so high that an education provider cannot do it. For example a support for a person with disability might cost so much money that if it was provided, the Education Provider would go bankrupt.
- 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:
- Any benefits or disadvantages that will be caused by carrying out the obligation
- The effect of the disability of the student
- 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 support students with disabilities and remove discrimination as far as possible, respecting 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.
If an education provider tells you that they will not give you the support you need because they cannot afford it, it is best if you check with one of the organisations mentioned at the end of this document as to whether you should accept this reason.
The difference between reasonable adjustment and unjustifiable hardship
Reasonable adjustment is concerned with whether the adjustment meets the need of the person with disability taking many things into consideration without impacting too much on the needs of other people.
Unjustifiable hardship focuses on whether the adjustment will cost the education provider so much that it would be unfair to make the education provider carry it out.
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