The Human Rights Act (HRA) prohibits discrimination on the basis of disability, which means; “physical disability or impairment; physical illness; psychiatric illness; intellectual or psychological disability or impairment; and other loss or abnormality of psychological, physiological, or anatomical structure or function; reliance on a guide dog, wheelchair or other remedial means; or, the presence in the body of organisms capable of causing illness.”
In many instances medical conditions (crook backs etc) will fall within the definition of disability. This means that on the face of it an employer is not able to ask questions about the disability or make decisions on appointment to a role taking into account the disability.
In many cases however this is impractical.
The law has grown to deal with this impracticality. The law allows for this impracticality where the disability cannot genuinely be accommodated or would put the employee or others at risk. So, for example, if the job involves lifting heavy boxes an employee could not be expected to accommodate someone who couldn’t lift heavy boxes. An employer is allowed to ask questions about the employee’s physical ability to do the job.
A recent case involved a fireman who did not disclose in an application (that specifically asked about mental illness) that he had a history of mental illness and depression.
Here, the Employment Relations Authority ruled that his mental state and history was relevant to his and his work colleagues’ safety in the workplace and that after a proper investigation the employer was justified in dismissing him for that failure to disclose.
Undoubtedly the employer's case was assisted by the fact that the employee’s mental illness flared up again and clearly impacted on his ability to do the job to a satisfactory standard.
I remain of the view, and I know that others disagree with me, that in the main there is no obligation upon people to disclose a history of mental illness such as depression particularly if the illness is being successfully dealt with by the employee.
Very broad questions such as “Do you have any medical problems of any kind?” have been found to be unlawful since they did not provide any safeguards against discrimination on the grounds of disability. Such broad questions enable an employer to potentially reject an applicant on the basis that he or she has suffered from a disability or medical condition even if it would have minimal or no impact on the job applied for.
So, when employers look at developing their recruitment procedures they need to be aware of the rules .If you are applying for jobs remember that you have an obligation of honesty and good faith towards your employer but if you have concerns about the types of questions being asked – seek advice.
