Some employers already use or may be thinking about using pre-employment medical examinations to determine a job candidate’s ability to safely perform the role for which they are being considered.

This article considers a discrimination case against the backdrop of pre-employment medical examinations. In Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176, a prospective employee (ie job candidate) brought a disability discrimination claim against Kembla Watertech. The candidate, Ms Duncan, had been offered a role subject to a pre-employment medical. The doctor performing the medical found that Ms Duncan suffered from a number of medical conditions that would make it difficult for her to perform the role and that there was a high risk of injury or aggravation of other medical conditions. The employer did not proceed with Ms Duncan’s employment and advised her that she was disqualified on the basis that she was unable to perform the inherent requirements of the role.

Ms Duncan lodged a claim with the NSW Anti-Discrimination Board and the matter was heard by the Administrative Decisions Tribunal (ADT). The Tribunal found that although the employer discriminated against Ms Duncan it was not unlawful discrimination because the medical evidence supported that she would have been unable to fulfil the inherent requirements of the role. These requirements included being able to safely conduct site visits in variable and uneven terrain. The complaint was dismissed in whole.

 

Lessons for Employers

Employers who are using, or contemplating using, pre-employment medicals need to consider carefully: the purpose of the medical; the scope of the medical and what is being assessed; as well as how the information will be used.

Pre-employment medicals that are implemented appropriately and are not discriminatory may be seen by both employers and employees as a win-win situation. Used in this way they can be a useful tool for employers to assist in meeting their health and safety obligations and for employees to remain alert to any underlying and potentially undiagnosed medical conditions.

The issue of whether or not a request for a medical, or the use of the information from it, leads to discriminatory behaviour, can be a tricky one. The considerations include the circumstances surrounding the request for the information, what information is sought and how it is then used. As demonstrated in this case and covered in our other articles, it is important to link back to the inherent requirements of the role and to be consistent in the treatment of employees.

Sarah Waterhouse

Solicitor

BlandsLaw

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