Employers have the right to check that employees are fit to perform their roles; in fact, it is a crucial part of an employer meeting its safety obligations. Despite this, many employers don’t feel comfortable making these inquiries. How can you ensure your employees are fit for work?
Unfortunately, even if an employer is unaware that an employee has a condition or attribute that could form the basis of unlawful discrimination, they can still be found guilty of discrimination.
Requiring thorough pre-employment disclosures and ensuring comprehensive follow-ups are essential in ensuring employees can safely perform their work, as well as reducing risks of unlawful discrimination.
When Disclosures Are Not Enough
In a recent case, an employee failed to disclose that he suffered from type-2 diabetes in his pre-employment disclosure, as he didn’t think it would be relevant to the role.
The employee subsequently made a claim against the employer for discrimination. He claimed that he had been subjected to unreasonable working conditions, which made his medical condition unstable.
The Victorian Civil and Administrative Tribunal (VCAT) found that the employer had indirectly discriminated against the employee on the basis of his diabetes. This was found despite the employee never informing his employer of the condition.
If the employer was never aware of the employee’s illness, what were they meant to do?
Simply put, the employer should have followed up. The employee had left the section about pre-existing medical conditions on his medical disclosure form blank. VCAT found that the employer should have viewed the blank section as a red flag, and taken the initiative to confirm with the employee that there was nothing to disclose. In failing to do so, the employer imposed an unreasonable requirement on the employee to work significant overtime, which resulted in a detriment to him given his medical condition.
Fitness for Work
It is ultimately an employer’s overarching obligation to ensure employees are fit for work, both from the outset of employment and on an ongoing basis.
In undertaking pre-employment assessments, an employer will have intimate knowledge of the specific demands of a role. Therefore, the employer needs to arm employees with this information in order for the employee to make informed disclosures. This will assist employers to ascertain whether an employee can perform the role safely, or whether reasonable adjustments need to be made to enable the employee to perform the inherent requirements of their role.
Further, during the employment relationship employers should not be afraid to have employees attend assessments of their fitness for work by independent medical practitioners, where there is a reasonable suspicion that the employee is no longer fit for work but hasn’t told anyone.
Ensuring An Employee Is Fit For Work
To ensure employees are fit for work, employers should:
- Review any pre-employment disclosure forms, and provide applicants with information regarding the inherent requirements of their role to encourage informed disclosures;
- Ensure safety policies include fitness for work procedures which enable employees to be assessed during employment;
- Train management staff to appropriately address concerns regarding employee fitness for work;
- Order fitness for work assessments where there is reason to believe that an employee may not be fit to continue working; and
- Ensure employees understand their own safety obligations to report any restrictions on their ability to perform their role safely, including where working conditions change.
Employees don’t always disclose relevant health information, even when asked.
Ultimately, an employer cannot abdicate responsibility for an employee’s fitness for work. Employers must ensure that they monitor the health of employees on an ongoing basis. Having robust fitness for work procedures will assist in ensuring employees are safe at work and that the employer is not at risk of discrimination and workers’ compensation claims.
Case Study: Ferris v Department of Justice and Regulation (Human Rights) [2017] VCAT 1771
