Tuesday, 2 May 2017

Recruitment Risk: Disability discrimination in the hiring process

During the recruitment process, employers are assessing the suitability of candidates to perform a specific role and to fit within the culture of the team. It can be difficult for an employer to determine if an employee with a disability, such as a mental illness, can safely fulfil the inherent requirements of the job.

This is especially true where employees do not disclose their medical conditions at the initial stages of recruitment. This may be perceived as dishonest by the prospective employer.

There is a fine line, in such cases, between dishonesty and discrimination.

Case Study: Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112

Mr Chalker applied for a job with Murrays Australia (Murrays) as a bus driver. In the course of that interview he was given the following question:

Do you suffer from any medical condition, disability or injury that may have an effect on your performance of the duties in the job for which you have applied?

In 2014 Mr Chalker was diagnosed with borderline personality disorder. Despite this, Mr Chalker answered ‘no’ to this question. He believed that his diagnosed condition and prescription medication would not have any effect on the performance of his duties. During a routine medical assessment, which formed part of the recruitment process after the initial interview, Mr Chalker disclosed his disability. The medical assessment showed that Mr Chalker was ‘temporarily unfit’ to perform the role and further assessment would be required to determine his suitability for the role. Mr Chalker was not afforded a subsequent medical assessment and was ultimately unsuccessful in securing the role.

Mr Chalker initiated proceedings against Murrays, claiming that Murrays discriminated against him in the recruitment process because of his disability.

Murrays submitted that Mr Chalker was unsuccessful in his application because he was dishonest by failing to disclose his medical condition, ‘agitated’ at the medical assessment and his dishonesty demonstrated that he would be unable to perform the inherent requirements of the role.

The Tribunal found that Mr Chalker had answered honestly, as he had more than a year of experience driving buses for another employer since his diagnosis with borderline personality disorder, and genuinely believed that he was fit to perform the role. There were no incidents or accidents in that time.

Further, as Mr Chalker considered (and had evidence to prove) that his condition did not impact on his ability to drive buses, Mr Chalker’s conduct in failing to disclose his condition was neither unreasonable nor dishonest. The Tribunal accepted Mr Chalker’s explanation that he did not reveal he was taking medication on the form, because he did not consider that the medication affected his ability to drive a bus as he had been doing so for over a year without incident, and he preferred to explain the medication to the doctor rather than put it in a form.

The Tribunal further did not find any inference that Mr Chalker would be unable to comply with the inherent requirements of the role (pertaining to legislative self-reporting requirements).

As such, the Tribunal found that Murrays had treated Chalker differently on the basis of his disability and had therefore discriminated against him in the recruitment process. He was awarded $10,000.

Lessons for Employers

Employers should confident that their employees are fully capable of performing the work for which they were hired with due skill and without risks to their own health or the safety of those around them. At the same time, employers should not discriminate against potential employees who have mental illnesses during the hiring process. This can be a difficult decision to make.

This case provides guidance as to a Tribunal’s willingness to find in favour of an employee where there may be a question of honesty at play.

HR Legal works with employers to defend general protections claims and to provide training to staff involved in the hiring process to prevent discrimination claims before they happen. If you require assistance in relation to these areas, please contact us.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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