Example: “Do you have any medical problems of any kind?”

Case: WC 50/02 Employment Court

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 exactly what kind of adjustments might be 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.

And 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: [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.”