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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, s 23; Case: WC 50/02 Employment Court

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, “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 on the basis of an unlikely, worst-case scenario.

Employers can’t ask you in blanket terms 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?”

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.

The Employment Court is one level higher in the court system than the Employment Relations Authority (ERA), which is the one that deals with employment disputes at the first level. So that makes this decision particularly important, as all ERA decisions have to follow it in similar cases.

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 only 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 (s 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

Quite apart from that, the employer’s claim also failed because the employer hadn’t shown on the balance of probabilities (the necessary standard of proof in employment cases) that A’s leukoplakia and IBS had had a serious impact on her work.

Also, the employer’s right to fire her for any misrepresentation rests on the general rule about cancelling contracts (any kind of contract) 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.

And, by the way, the judge said the employer had also breached the Privacy Act (Principle 1) because they hadn’t explained on the application form why they wanted the information (see the chapter “Privacy and information” in this manual).

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, 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.”

Example: Answering “health” questions on your application form

Case: Employment Relations Authority, Christchurch, CA 58A/02

An employee was fired after the employer decided, wrongly, that he had lied about his qualifications. The employer also thought the employee should have mentioned his dyslexia on his job application form. The employee took the case to the Employment Relations Authority.

The application form had asked several questions under the heading “Health”, including whether the job applicant had “any current condition or past medical history which may affect your ability to effectively carry out the duties of the position applied for, e.g. Asthma, high blood pressure, heart problems, diabetes, allergies, colour blindness”. In answering that question, the employee said he had asthma, but he didn’t mention his dyslexia.

Dyslexia is a learning issue, not a “health” issue, says an expert

In deciding the case the Employment Relations Authority got some expert advice about dyslexia from a psychologist. The expert told the ERA that the employee was “an extremely able young man who has a mild to moderate degree of Specific Learning Disability of the ‘phonological’ Dyslexia type.” The expert thought it was unlikely his impairment would affect his work.

The expert also said that 99% of people with dyslexia wouldn’t have included it in an answer about “health” – they would have called it a “learning” issue, not a health issue. In the light of the expert’s evidence, the ERA judge decided the employee hadn’t misrepresented his health status on the application form – “I consider that most persons would not consider a learning disability to be a health condition.”

The ERA added: “It may be that, through his own research into dyslexia, [the employer] formed some inexpert and limited view as to what the applicant was capable of. This is supported to some degree by the offer to the applicant of a lesser skilled job.”

Because the employer had also been wrong about the employee lying about his job qualifications, the ERA ordered the employer to give him his job back (“reinstatement”), along with some compensation for lost wages and for emotional stress.

In this particular case, the ERA had originally ordered the employee to be temporarily reinstated in his job while it investigated and decided the case, which took seven weeks. The employee told the ERA it was now “going really well”, that he had a new manager with whom he had a good relationship, and his work colleagues were generally being supportive and encouraging.

But the discrimination claim failed

The ERA judge decided the employee hadn’t been discriminated against on the grounds of disability. The ERA said the employer had been insensitive about the dyslexia issue, but accepted the employer’s point of view that the qualifications issue was the reason for firing the employee. So the employee’s separate personal grievance on the ground of discrimination failed.

What if the employer doesn’t ask me any questions about disability? Do I have to volunteer information about an invisible impairment?

Case: Employment Court Wellington WEC 5/96

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 if you’re not asked anything about relevant health conditions or impairments, you don’t have to volunteer any information about this.

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 has a guide to employment for Deaf and hard of hearing people available here: www.deaf.org.nz/services/employment

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