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Mind your health questions

5 December 2018

Employers have become more creative and sophisticated with pre-employment questions.

Recently we have seen an increase in questions relating to potential employees' physical and mental health.

Employers say it is important to know of any potential risks in employing an applicant from a health and safety perspective. On the other hand, applicants may resent questions that intrude into their physical and mental health and that appear to be just plain nosey.

Outdoor equipment retailer Kathmandu, was recently criticised for asking job applicants questions about their health, including what prescription medicines they were on. This resulted in a lot of public criticism.

Mental Health Foundation chief executive Shaun Robinson said knowing what medications someone takes does not give the employer information about whether they can carry out their job competently. However, the questions could lead the employer to discriminate against certain applicants.

Kathmandu has rethought its approach and announced it will no longer ask applicants questions about health and medication.

The Green Party has started an investigation into claims that employers, including government departments, are asking job applicants questions about mental health. The Green Party's mental health spokeswoman, Chloe Swarbrick, has been shocked by how many people have been questioned about mental health when applying for work.

Swarbrick has been open about having a history of anxiety and depression. She says she is one of the one-in-six New Zealand adults who have been diagnosed with a common mental disorder.

The Human Rights Act prohibits discrimination on the ground of disability. Disability includes psychiatric illness and psychological impairment.

Where an applicant is qualified to do a job it is unlawful for an employer not to employ them or to give them less favourable terms because of psychiatric illness or psychological impairment.

It is also unlawful for employers in their pre-employment forms to ask questions that could reasonably indicate an intention to discriminate. Why ask general questions about physical or mental health if you are not going to act on them?

Despite all of this, employers are entitled to ask questions about a person's health where it is directly relevant to their work. Employers may ask whether there is anything that will impact on an applicant's ability to do their job.

Simon Cook took a case against Allied Investments which focused on pre-employment questions. Cook was asked about "physical, medical or other conditions which may affect how [he performed] the job [he] applied for". He didn't disclose anything. When Allied found out Cook had not disclosed two medical conditions it dismissed him.

The Employment Relations Authority said that Allied could dismiss Cook for failing to disclose those conditions. That was because the medical conditions could have led to a dangerous environment which put Cook at risk and potentially his employer at risk.

It was significant that he was in sole charge of a large factory using dangerous chemicals "in the dead of night".

A saleswoman was more successful in her case against Imperial Enterprises. She was a counter saleswoman for Imperial and completed a pre-employment form before she started work.

It asked whether she had any medical problems of any kind. She did disclose a hip problem, but she did not say that she suffered from irritable bowel syndrome and a condition called leukoplakia which was dormant.

During her employment she became unwell and was admitted to hospital and absent from work on a number of occasions. The woman advised Imperial of her illnesses and Imperial dismissed her for failing to disclose them.

The Employment Court held that the undisclosed illnesses didn't have a serious impact on her employment. She had been unjustifiably dismissed.

If there is a real possibility of an illness having an impact on your ability to perform your role, and you fail to disclose it, it may well lead to dismissal. However, broad intrusive questions which are wide of the mark should be avoided by employers.

Swarbrick is a champion for people being open about their mental health problems. Hopefully her example will encourage others to be open about their struggles too. But not everyone is ready to share such personal matters.

Although some employers try extract private information, the law imposes boundaries to prevent employers intruding where the potential employee's ability to do the job is not at issue. A sensible balance.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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