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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

 

Medicals vs. Fitness for Work Assessments (F4W©) and why they’re important for your business

“…fitting a square peg into a round hole is not only difficult, but damages either the peg or the hole” (Randolph, 2000).

Doctor provided ‘generic’ medical screens are common and relatively cheap. They usually include an assessment of hearing, eyesight, blood pressure, and a medical questionnaire, typically sourced from voluntary disclosure. But the issue with a ‘generic’ medical assessment is that they have the potential to miss important information, rule someone out unnecessarily, rule someone in who shouldn’t be, or open employers up to possible discrimination.

 

This is why ‘generic’ is dangerous and can actually be quite costly in the end. If a role does not require a specific function, let’s say overhead lifting, and you rule a good candidate out because they cannot lift their arm over their head, then not only have you missed out on a good candidate, but you may have exposed yourself to discrimination.

 

Likewise, what if you hired someone to do a physical role and they were carrying a back injury they did not disclose to the doctor, or ‘played it down’. They then aggravate their injury at your workplace, put in a valid workers compensation claim and have to stop work. This would be a disastrous outcome for both you and the employee, who is now injured and unable to work.

 

So how does a good Fitness for Work Assessment differ?

 

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.

 

A good F4W© will be based on a task analysis. This is not a job description – which outlines things such as responsibilities, accountabilities or employment conditions, but rather a detailed account of the movements (like bending, kneeling, lifting), frequency of these (e.g. once/day vs 20/day), and load/force (e.g. push 25kg at waist level) required for the role. For example, the physical work an office worker does is entirely different to that of a plant operator – does it make sense for them to do the same test?

 

A good F4W© will be conducted by a trained allied health professional, such as an Occupational Therapist, Physiotherapist or Exercise Physiologist with experience in preventing and managing workplace injuries. These professionals understand the impact of injuries on work tasks, are trained to detect muscle weakness, poor techniques, signs of fatigue and strain and identify at-risk persons. Their recommendation is based on evidence-based clinical judgement. They can also offer reasonable and practical suggestions to allow you to engage someone with only moderate risk, such as aids/equipment or manual handling training or job modification.

 

A good F4W© will protect against discrimination and invasion of privacy. Asking questions or assessing things not related to the role can expose an employer to discrimination if you rule that person out based on those answers. Knowing the right questions to ask is crucial. For example, asking whether someone has had a previous workers compensation claim is fraught with danger – and does it matter anyway? What is more important is whether they can perform the role safely. Likewise, too many personal questions without valid reason can be an invasion of someone’s privacy and simply not relevant.

 

And long-term, a good F4W© assessment provides a baseline for determining how employees are affected by the work they do in your business. For example, an employer can assess the validity of an employee claiming industrial deafness, when in fact, they had diminished hearing prior to commencing employment.

 

Evidence shows that employees who are not tested for fitness for work have:

By completing an appropriate F4W© assessments, businesses can help reduce accidents, provide a safer workplace, reduce absenteeism and decrease workers compensation premiums and claims costs.

 

So, whilst it may seem tempting to take the cheap option, employers should consider whether this really will give you the protection and outcome you need. Or will it cost you much more in the end if you get it wrong?

 

Find out more about Fitness for Work services available.