We’ve heard about hundreds of cases in Australia where an employer is legally prosecuted for discrimination against a potential employee, due to the result of a pre-employment medical. It usually goes something like this…
- Employer advertises for an upcoming position, interviews candidates and creates a shortlist
- Employer offers a potential employee the position, provided they pass a pre-employment medical
- The potential employee undertakes the medical however is declared ‘unfit’ due to an underlying or pre-existing medical condition (which may or may not actually deem that person unfit to do the job)
- The potential employee does not get the job and sues the employer for discrimination
- The employer is burdened with unnecessary stress and thousands of dollars in legal fees and compensation, which could have been avoided by completing an initial Fitness for Work Assessment
Unfortunately it’s all too common and, unfortunately, rarely do we hear about the cases where the employer is found not guilty, where their decision was made solely on a task-based analysis rather than a job description.
Let’s look at the case of Duncan v Kembla Watertech Pty Ltd  where a job candidate, Ms Duncan, brought a disability discrimination claim against a prospective employee, Kembla Watertech.
The prospective employer completed a Fitness for Work Assessment, rather than a generic medical exam, which considered the physical and cognitive demands of the role, as well as a detailed account of required movements. The specialist performing the assessment found that Ms Duncan suffered from a number of conditions that would deem her unable to perform the required tasks safely, and may in fact aggravate existing medical conditions. Kembla Watertech did not proceed with Ms Duncan’s employment, as she was unable to perform the inherent requirements of the proposed job, to which she lodged a disability discrimination claim. It was found that the evidence from the Fitness for Work Assessment supported the employer’s claim that Ms Duncan would not be able to safety perform the role and the case was dismissed.
The lesson learnt here is that when a pre-employment Fitness for Work Assessment is implemented appropriately, and conducted by a trained allied health professional with insight into the specific role on offer, it can be a win-win situation for both employers and employees; not only does an employer hire the right person for the job, but the employee knows that their health and safety is being cared for, they are not being discriminated against – but rather protected from working unsafely.
So when you’re next hiring and thinking about utilising a pre-employment Fitness for Work Assessment, consider it carefully. Done properly, a Fitness for Work Assessment is more thorough, provides protection against discrimination claims and assists in getting you the right person for the job.