WORK TO RULE
Full disclosure critical with job applications
The Employment Relations Authority released a determination in November that will have an impact on many employers who work in health and safety-sensitive situations.
The determination related to a person who filled out a preemployment questionnaire relating to whether or not he had ‘‘any physical, medical or other condition that may affect how you do the job you applied for’’.
The form listed several specific medical conditions including ‘‘nervous disorder/anxiety’’.
The man completed the form saying that he had none of those conditions.
The work the employee was required to undertake related to night shift security work at a factory using dangerous chemicals.
Before he was due to commence his first shift he rang in saying he would be unable to attend work and later produced a medical certificate from a mental health crisis service saying that he was unfit for work for three days (the decision does not record exactly what the man suffered from, merely that it related to mental illness).
While he was on sick leave he was dismissed for not telling his employer about what they considered a relevant condition. The employee’s response was that he was not obliged to tell the employer because of the provisions of the Human Rights Act 1993, which prohibit the discrimination of people on the basis of a medical condition.
When an employer employs an individual, they have to take all practicable steps to protect that individual from identified hazards in the workplace.
For some people a hazard can result from a condition they have, which means the workplace could be unsafe for them when it is safe for others. Under the Health and Safety in Employment Act the employer has to make a determination on what may be hazards for individual employees. They can do so only if they have full knowledge of all relevant conditions suffered by an employee.
In this case the individual frustrated the ‘‘need to know’’ requirements of the employer and in doing so breached his obligations as to ‘‘good faith’’ under the Employment Relations Act 2000. This requires a party to an employment relationship not to do anything that may deceive or mislead another party. In this case, by withholding critical information about his health, the individual breached his obligations in terms of good faith. It was also implicit in his application that if he did withhold relevant information, then the employer could dismiss him summarily.
From an employer’s perspective it is good to know that the authority will uphold an employer’s ‘‘right to know’’, when the right to know allows them to make an informed decision as to whether a person would (or would not be) safe undertaking the work they would be employed to do.
Employers need to actively seek out information that is relevant to whether an employee can undertake work safely. To put the person in a situation where they may harm themselves is a prima facie breach of the Health and Safety in Employment Act, the fines for which can be quite substantial.
Even an office worker can be subject to health and safety concerns such as a bad back or occupational overuse syndrome (or RSI as it was once known).
Applicants for jobs need to be aware that employers are more and more likely to ask health questions, which they can do if relevant to the position. Has the applicant ever suffered a back injury when he or she played rugby, netball or rode motocross bikes?
The employee has an obligation to answer those questions fully and accurately and many employers now make employees aware of the direct consequences of not answering the questions fully and accurately – they may be dismissed.
On these occasions, though, employers must always remember the Mary-Jane dictum, which is: get the process right, follow the correct process; because if an employer summarily dismisses the person without carrying out a fair investigation, the dismissal runs the risk of being successfully challenged and costing the employer valuable time and money.