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Information of interest to our Clients and for the industry

Case Study: when a pre-employment medical can put you at risk of discrimination claims

When hiring new employees, employers often put themselves at risk of discrimination, either advertently or inadvertently and despite the best intentions. Chalker v Murrays Australia Pty Ltd [2017] is a great example of this, and demonstrates how a general medical screen can go wrong if not completed properly.

In this case, Murrays Australia was ordered to pay a job candidate $10,000 compensation as the result of mental health discrimination during the recruitment process. So what happened?

As part of the application process for a Coach Driver position, Mr Chalker was required to declare if he suffered from any medical condition, disability or injury that may have an effect on his performance or the duties in the prospective job. Mr Chalker had been diagnosed and medicated for a mental health condition, borderline personality disorder, however believed that it would not affect his ability to perform the duties of the role. He answered ‘no’ and, during an interview, was told that given his experience there would be a job for him as soon as he was able to undergo a driving test and obtain his NSW public vehicle certificate.

Subsequently, Mr Chalker was sent for a pre-employment medical exam with a GP. Having disclosed his mental health condition and medication, during the assessment, the doctor found Mr Chalker to be ‘agitated, irritable and difficult’ during the interview. The doctor found him temporarily unfit for the position pending further inquiries and an assessment by an independent psychiatrist. After reviewing the doctor’s report, Murrays Australia decided against hiring Mr Chalker, claiming his temporary unfitness was the decisive factor.

The Tribunal found Murrays Australia’s argument that Mr Chalker could not perform the inherent requirements of the role, and therefore should not be offered employment, to be false, and that his disability or medication had no effect on his ability to safely drive a bus.

And this is why a general medical screen can often be dangerous; not only ruling out a candidate who can actually perform the role, potentially ruling in a candidate who shouldn’t be, and opening up the flood gates to discrimination claims.

So what is the best way to find the right person for the job, whilst protecting against the risk of discrimination? A comprehensive Fitness for Work Assessment (F4W©), conducted by a trained professional, is crucial in the recruitment process. A good F4W© considers the actual physical and cognitive demands of the role and directly assesses a candidate’s ability to perform those tasks safely. It is based on a task analysis, not a job description, and a detailed account of physical or mental (cognitive) work required for the role.

Employers should ensure that any recruitment decision is based on these factors only to avoid putting themselves at risk. Regardless of whether you consult a Fitness for Work provider, or follow your company recruitment procedure, ensure you follow these steps when medical assessments are required for a role:

  1. Perform a task analysis and assess the candidate against those tasks only – understand the physical and cognitive requirements of the job, rather than just the responsibilities
  2. Ensure the right people conduct the assessment – it needs to be a qualified and experienced person, who fully understands the inherent requirements of the job
  3. Provide a recommendation of the candidates suitability for work based on a scale of capability to complete the role safely – a simple ‘yes’ or ‘no’ significantly contributes to risk of discrimination. A good assessment should provide recommendations for reasonable adjustments and/or further assessment of the candidate if more information is needed.
  4. Only ask questions specifically related to the role and performing it safely – too many personal questions can not only be unnecessary and unrelated, but also an invasion of privacy

A quick Google search is all it takes to find a myriad of cases just like this one. Unfortunately, discrimination claims are brought against employers all too often, even when the correct procedure is followed. Protect yourself against the risks of claims and ensure a good Fitness for Work Assessment forms part of your recruitment process.

Related reading:
The difference between a medical assessment and Fitness for Work

 

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