The employee was initially employed as a counter salesperson and later promoted to do despatch duties. When she started, she completed a pre-employment form which asked “do you have any medical problems of any kind? If yes, please detail what and when.”
The employee wrote yes and indicated a problem with her hip joint. She did not write on the form that she had two pre-existing conditions of irritable bowel syndrome and leukoplakia (pre-cancerous condition).
After about five months the employee began taking sick leave on a number of occasions. She attended a meeting with the employer and at that meeting the Defendant’s stomach problem and cancer were discussed as well as the fact that neither of those conditions were disclosed on the pre-employment form. She was dismissed.
The Authority held that there was no good and sufficient reason for her dismissal. The process was unfair and she was awarded 12 weeks lost wages and $4,500.00 compensation for humiliation. The Authority held that the question in the applicaton form was in breach of the Human Rights Act. The employee was under no obligation to disclose her medical conditions so she had not made a misrepresentation by remaining silent.
This case is a warning that pre-employment questionnaires are in themselves not a reason for dismissal if an employee has not filled them out correctly. Make sure you contact us before you dismiss somebody relying upon what you think is a failure to disclose in a pre-employment questionnaire.
Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
