As a general rule of thumb, it is unlawful for a prospective employer to ask for information upon which they may discriminate against a person who is applying for work.
It is also unlawful to base recruitment decisions on a person’s impairment, perceived impairment
or their previous or current injuries or medical conditions.
What is and what isn’t discrimination is blurred by the Workers’ Compensation and Rehabilitation Act as this Act allows a prospective employer to:
(i) Give a written request to a job applicant to disclose any pre-existing injury or medical condition that might be aggravated by performing the duties of the job; and
(ii)Ask a job applicant to consent to the prospective employer obtaining a copy of the applicant’s claims history from the Workers’ Compensation Regulator.
1. What should my request for disclosure contain?
When requesting disclosure of pre- existing injuries and medical conditions, your request must be in
writing and set out:
• The duties of the job; and
• A warning that if the applicant knowingly makes a false or misleading disclosure, the applicant will not be entitled to compensation or to seek damages for any event that aggravates the pre-existing injury or medical condition. You must also give the applicant a reasonable time to comply with your request.
2. What if the applicant will not provide the disclosure?
If your request for disclosure is valid, an applicant must disclose any pre-existing injury or me dical condition.
Not complying with the request could result in the applicant being excluded from the recruitment
process.
3. What if the applicant makes a false or misleading disclosure?
A false or misleading disclosure is where the applicant does or says anything that leads the prospective employer to reasonable believe that the duties of the job being applied for would not aggravate the applicant’s pre-existing injury or medical condition.
Making a false or misleading disclosure is significant as it may mean that the employee will not be
entitled to compensation or to seek damages for any event that aggravates that pre-existing injury
or medical condition.
4. What can a prospective employer do with a Workers’ Compensation Claims History?
If you are obtaining and using an applicant’s medical conditions and claims history as part of your
recruitment process, you must tread lightly as a person who has been unfairly excluded from employment on the basis of an injury has a right to make a complaint of discrimination under the Anti-Discrimination Act. A valid exemption must apply in order to exclude a person based upon this
information.
What is a valid exemption?
Valid exemptions are:-
• Give access to the documents to anyone else;
• A worker not being able to perform the genuine occupational requirements for a position;
• Use the contents or information for any purpose other than the purpose of the recruitment process.
• An employer fixing reasonable terms for a person with restricted capacity;
5. Some examples of what the Courts have found to be discrimination:
• It was discrimination withdrawing a job offer for the
• An employer being exposed to unjustifiable hardship in making position of Business Development Manager when a long-term shoulder injury was disclosed as minor adjustments could have been made to avoid the applicant having to perform physically demanding work.
• It was not discrimination rejecting an application for the position of fire fighter when the applicant was colour blind.
• It was not discrimination where a pregnant worker at an animal refuge would be subjected to an
unacceptable health hazard as it was not possible to ensure that she did not come into contact with cats or cat faeces when the refuge was a high risk for toxoplasmosis infection.
If you are an employer, or an employee, and would like more information on the use of medical information in recruitment please contact our office to make an appointment.
