Disability Rights
Employment: Access to jobs and protection against discrimination
Applying for jobs: What you do and don’t have to say about your impairment
What questions can an employer ask me about my impairments? And what do I have to tell them in response?
Human Rights Act 1993, ss 22, 23, 29, 35 Case: Imperial Enterprises Ltd v Attwood EmpC Wellington WC 50/02, 18 December 2002, [2002] 2 ERNZ 740
When you’re applying for a job, employers are allowed to ask you if you have any medical problems or impairments that could affect whether you can do the job to a satisfactory standard. For example, employers are allowed to ask “Do you have any medical problems or disabilities that could affect your ability to do the job?”
You have to answer those questions honestly. But (as the second case example below shows) you don’t have to answer questions based on an unlikely, worst-case scenario.
Employers can’t just ask you whether you have any medical problems or impairments at all. This is because it’s illegal to ask questions that indicate, or could reasonably be understood as indicating, an intention to discriminate against you on the grounds of disability.
Example: “Do you have any medical problems of any kind?”
Employers can’t ask wide-open questions like this about possible medical conditions or impairments. This issue was discussed fully by the Employment Court in a case from 2002.
When “A” had originally applied for her job, the application form asked, “Do you have any medical problems of any kind?”. She wrote down that she had a disease affecting her right hip joint, but she didn’t include that she had irritable bowel syndrome (IBS) and a precancerous condition called leukoplakia.
The employer was very happy with her in the first five months, during which she had three days off work (for unrelated problems). But then she had some serious stomach pain and had to take sick leave several times, including for doctor and hospital visits.
The employer called her into a meeting where the employer and their lawyer focused in particular on her IBS and leukoplakia and the fact that she hadn’t mentioned them on her job application form. After the meeting they fired her, claiming she’d misrepresented her medical status when she applied for the job.
She took the employer to the Employment Relations Authority, claiming this was an unjustified dismissal, and she won. The employer appealed to the Employment Court (the next level up), who again decided in favour of A, the worker.
The employer’s questions must relate to your ability to do the job
Employers are allowed to ask job applicants about things that could affect their ability to do the job satisfactorily – but they have to make sure they do this in a way that doesn’t breach the anti-discrimination laws. Asking a really broad question like “Do you have any medical problems of any kind?” could reasonably be taken as showing that the employer intended to discriminate against any person with an impairment, and that’s illegal under the Human Rights Act (ss 22, 29).
The judge said that if the employer had asked the question in a narrower way then that narrower question could “conceivably” have been OK. For example, if the employer had been trying to work out whether, and what kind of, adjustments were needed in the workplace. But that’s not what the employer did.
Since it was against the law for the employer to ask this very broad question, A didn’t have to fully reveal all her medical conditions, and so she couldn’t be fired or disadvantaged by the employer for not answering it fully.
Some more reasons why the employer lost
The employer’s claim also failed because the employer hadn’t shown to the necessary standard of proof in employment cases (known as the “balance of probabilities”) that A’s leukoplakia and IBS had had a serious impact on her work.
Also, the employer’s right to fire A for any misrepresentation of her medical status relies on the general rule about cancelling contracts for misrepresentation. Under that rule, the employer would only have been able to cancel the employment contract if the two sides had agreed – either explicitly or implicitly – that A’s revealing all her medical conditions was “essential” to the employment agreement. So that was yet another reason why the employer failed in their argument that it was fair to fire her.
The judge also said the employer had breached the Privacy Act (Principle 1) because they hadn’t explained on the application form why they wanted the information. For more information about privacy rules, see: “Privacy and information”.
Example: Employer claimed that worker with epilepsy hadn’t been honest when applying for the job
Case: Sommerville v LDK Investments Ltd [2015] NZERA Christchurch 14
The Employment Relations Authority (ERA) decided a worker with epilepsy had been wrongly dismissed. The ERA rejected the employer’s claim that the worker hadn’t been honest about how much her epilepsy would affect her work when he’d asked her this at her interview. She’d told the employer, accurately, that her seizures were usually at night, very seldom during the day.
She’d started on 4 November and finished on 4 February the following year, when she’d been unjustifiably dismissed because of her condition. She’d had two seizures during the day, one during November and the second on 3 February.
The ERA said she hadn’t been dishonest – her condition was hard to predict, and she’d given her opinion honestly based on her previous work experience with her epilepsy.
One of the employer’s arguments to the ERA was that he’d acted in good faith by giving the employee work despite her epilepsy, and so he shouldn’t now be disadvantaged by the ERA allowing her claim against him. In response to this, the Employment Relations Authority said:
“… it is not the case that the law holds employers who employ people with health issues or disabilities to a lesser standard than other employers. The same test of whether a dismissal was justifiable or not must be applied [here] as to any employer.”
What if the employer doesn’t ask me any questions about disability? Do I have to volunteer information about an invisible impairment?
When you’re applying for a job, you have to answer honestly and accurately any questions you’re asked that are relevant to your ability to do the job. But you don’t have to volunteer any information about relevant health conditions or impairments (including if they might affect your ability to do your job) if you’re not asked about this. It is the employer’s responsibility to ask for your information that they want to know when deciding whether or not to employ you.
So, if an impairment or condition that you didn’t mention – a mental illness for example – does turn out to affect your ability to do the job, then the employer would have to deal with this as a performance issue, rather than as an issue about dishonesty when you applied for the job. This means they would have to give you a chance to improve, offering training or other support, and so on. They can’t fire you or otherwise discipline you for not telling them about the impairment.
Note: Deaf Aotearoa runs an employment service for Deaf and hard of hearing people, which you can read more about on Deaf NZ’s Website.
