A number of Members are still utilising employment application forms that include a series of health and medical questions which are putting their businesses or organisations at risk of breaching Australian legislation.
In fact, it is so prevalent that Workwise has felt the need to strongly advise all of its members to review their application forms and recruitment processes immediately and take the required steps to mitigate the risk that you are exposed to.
Asking health and medical questions that have no bearing on the inherent requirements of the job leave you open to very significant legal risk due to breaches of the Disability Discrimination Act 1992 (Cth) which applies to employers in every state of Australia.
Yes, employers can ask questions, however it is critical that you can explain why the question is being asked and what you are going to do with that information. If you are asking the question to unlawfully discriminate, a claim of discrimination may be brought against you which would need to be vigorously defended.
Asking such questions as “Do you smoke and if so, how many do you smoke a day?”; or “Do you drink alcohol and if so how many glasses a day/week/month?”; or “Do you have any physical disability?” are fraught with great risk to your business.
Chevron, with all of its available resources was in 2013 taken to task publicly across the country for including intrusive and personal questions on its pre-employment medical history form.
How many employers are qualified to make a medical determination on whether or not someone who can run 100 metres is fit to undertake the duties of a specific job role? (yes, we have seen this question) The answer is – not many.
As employers, are you proactively working with your preferred medical practitioner or occupational physiologist to determine what specific medical circumstances or level of fitness will be required in the role you are advertising. Such information is critical in order for you to use the answers on your questionnaire to lawfully eliminate applicants from your selection process.
The Disability Discrimination Act 1992 (Cth) (the Act) does include two “exemptions”:
- “inherent requirements” and
- “unjustifiable hardship”
To avoid a claim of discrimination being levelled, you must:
- be able to show that because of the applicants disability, they would not be able to undertake the inherent requirements of the work required to be performed; and
- be able to show that the business will suffer or have imposed upon it an unjustifiable hardship for example financial hardship of significant proportions.
In understanding your obligations as an employer in relation to the Act, you must first understand the object of the Act itself:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
The message of this E-Bulletin is to prompt all of our Members to immediately review and consider the following with the above knowledge in mind:
- the questions you are asking in your pre-employment documentation;
- know what your obligations are in regard to the Act; and
- consider any gaps in the skills and abilities of those people involved in your recruitment and selection processes and do something about having them trained or seek appropriate assistance during the recruitment process.
As usual, if you have any doubts whatsoever about your documentation or current practices, contact Workwise on 9792 4451 immediately so that we can assist you to identify and mitigate risks.
The information contained in this article does not constitute and should not be relied upon as ‘legal advice’. Workwise recommends that legal advice be sought from a suitably qualified legal practitioner prior to any action being taken. Such advice may be accessed via Workwise’s legal services.