Often, we are asked whether employers can ask prospective employees questions relating to their medical history in the pre-employment stages. These kinds of questions are permissible where they concern the applicant’s capacity to perform the inherent requirements of the role.
Employers should encourage disclosure of pre-existing medical conditions at the earliest opportunity. Not only will this allow employers to make reasonable adjustments where necessary, but can also eliminate potential risks to health and safety that may arise. In certain situations, failing to disclose (or answering dishonestly) a medical condition in pre-employment can lead to disciplinary action, including dismissal.
In a recent case, a prison store supervisor, who suffers from type 2 diabetes, claimed that his employer directly discriminated against him by treating him unfavourably, suspending and dismissing him because of his condition. Further, the employee also argued that by allowing an increased number of inmates without a comparable increase in staffing, he was indirectly discriminated against because it meant he could not manage his condition whilst at work.
The employee submitted that his diabetes was exacerbated by stress, lack of blood sugar monitoring, lack of correct blood insulin levels controlled by insulin injections and lack of rest breaks. Due to the increased workload, it was alleged that employees worked long hours, were unable to take breaks and had to work unpaid overtime. In response, the employer argued that it was unable to hire more staff until the regional restructure had been finalised.
VCAT Vice President Judge Harbison agreed that the employer imposed a condition that staff in the stores work unreasonably long hours. The workload became unmanageable, and this was categorised by an "inability to complete the required work on each day, a lack of meal or other breaks, and the necessity to either skip meals or to eat whilst working, coupled with the need to work on occasions for long hours… so that the work would be completed”. It was also accepted that the employees condition worsened because of the stress and physical labour of the extra workload. Therefore, employees claim for indirect discrimination was made out.
However, the tribunal was unable to make a finding of direct discrimination as the employee failed to prove that he was actually dismissed because of his condition. The employee was let go for instances of misconduct, including his swearing aggressively at a prisoner, failing to comply with a direction from a superior that he speaks in a more appropriate manner and his improper accounting of banking monies received.
The employee was also unable to prove that he was treated unfairly directly because of his diabetes. During pre-employment, the employee did not disclose his medical condition. He did not consider that it affected his abilities, nor did he regard it as a disability. He did not inform anyone that his working conditions needed to be scrutinised so that his diabetes could be managed. His employer was never made aware of his condition, even when it became unmanageable, and therefore it could not accommodate for it. For this reason, Vice President Judge Harbison found it inappropriate to award the employee any compensation.
Lessons for employers
- In the pre-employment stages, employers must ensure that requests for medical information relates to the applicant’s capacity to perform the inherent requirements of the role.
- Questions relating to existing illness/injury may be necessary to identify the extent of the applicant’s capacity, whether reasonable adjustments can be made and to determine whether a health assessment is required.
- At the outset, employers must develop an explicit and accurate job description to ensure that the applicant has the capacity to safely perform the role.
- It is vital that questions are framed with sensitivity, understanding and are not asked for a discriminatory reason.
- Provide a workplace environment where employees feel encouraged to disclose any pre-existing or arising medical conditions.
- Preserve confidentiality and privacy by ensuring that all medical information is adequately stored and protected. Information cannot be shared without the applicant/employee’s consent.
- Employers cannot ask questions concerning whether the applicant has made any prior workers compensation claims.
- Employees may be denied workers compensation where it is established that they have lied or failed to disclose a pre-existing injury or illness.
 Ferris v Department of Justice and Regulation (Human Rights)  VCAT 1771 (13 November 2017).