Recruitment – Asking About a Potential Employee’s Medical History
Wednesday 13th October, 2021
By Greg Arnold, Director & Principal Consultant
We are often asked by our clients the question – Can an employer ask potential employees about their medical history during a job interview? The question then begs, is it grounds for termination if the employer then later discovers they didn’t disclose a pre-existing condition or injury?
The answer lies in the framing of the interview question to ensure that there is no perception of discrimination by the employer on the grounds of physical or mental disability.
So, rather than ask whether the applicant has made a workers compensation claim, the appropriate question should be “Do you have a pre-existing injury or medical condition or disability that would have an impact on you performing the inherent requirements of the job?” This question is perfectly reasonable and acceptable.
Then any follow-up questions should detail what the condition is, any current restrictions on the applicant’s ability to perform the job and attempt to identify ways to accommodate the employee’s condition. In any case, asking questions relating to workers compensation does not necessarily address the issue. The employee may have had previous workers compensation claims but may have a pre-existing injury or disability which may preclude them from performing the job but was not necessarily the subject of a workers compensation claim.
When it comes to the issue of privacy, the High Court has held that employers may investigate issues in relation to applicant if they can establish that the information sought relates to the inherent requirements of the position.
The Courts have also found that the provision of false information in the pre-employment medical process may constitute serious misconduct and warrant dismissal. The provision of wilful and misleading statements by a prospective employee needs to be judged on whether the provision of false information affected the making of a new contract of employment.
Discrimination is often an issue that arises in these circumstances. However, in a 2011 case Duncan v Kembla Watertech Pty Ltd, the company that withdrew a job offer, on the grounds the applicant had various medical conditions that prevented her from performing the essential physical parts of the role. The NSW Administrative Decisions Tribunal found the company not guilty of unlawful discrimination on the basis of disability.
In essence, provided that the questions asked are framed properly, and are relevant to the inherent requirements of the position, then the information sought by an employer during an interview is not an invasion of privacy. Further, if false or misleading information is provided at the interview or during the pre-employment medical assessment, this may provide grounds for dismissal.
Should you require further information regarding this complex area of employment law, please do not hesitate to contact us.