BETWEEN A ROCK AND A HARD PLACE -

How Does an Employer discharge their Health & Safety obligations without breaching Anti-discrimination Legislation?

With increasing frequency, employers, mainly the large corporations, are refusing to permit successful job applicants to take up the position until they successfully complete a formal health assessment. In most cases, the task of performing the health assessment has been out-sourced to professional service providers, mostly medical and/or para-medical professionals specialising in occupational health and safety issues. What is increasingly obvious, though, is the fact that some of these professionals are unfamiliar with the requirements of anti-discrimination legislation.

In three recent but separate cases brought by complainants alleging wrongful refusal to employ on the basis of impairment, the respondent employer argued that the requirements of the local occupational health and safety legislation justified its use of and reliance on pre-employment medical assessments results as proper grounds on which to refuse to hire them. The Anti-Discrimination Tribunal rejected the defence in each case. The reasons supporting the Tribunal’s findings are almost identical. In each case, the Tribunal found that the complainant had independently demonstrated that he was robust, healthy and physically able to perform the tasks of the specific job in question notwithstanding the impairment; that the medical assessors had failed to demonstrate that the tests they carried out were relevant to the ‘genuine occupational requirements’ of the subject position; and that the minimum standards of acceptability imposed by the respondent in relation to particular attributes (e.g. degree of hearing loss, or gravity of diabetes) were too generalised, arbitrary, out of date and inconsistently applied. As well, the standards themselves had not been updated to reflect technological and scientific progress in the treatment and modification of the impairment itself. Finally, and perhaps most critically, the Tribunal found that the respondent was unable to prove that the impairment in each case jeopardised or even potentially jeopardised the safety of the complainant and/or colleagues in the manner it asserted.

In a fairly novel use of the occupational health and safety defence, a corporate respondent unsuccessfully argued that it had dismissed the complainant on the basis of its duty to protect all employees, including her, from injury. The complainant was a bar attendant who sought a reduced working week following confirmation of her pregnancy. The respondent agreed but transferred her to a different bar. In that area, the floor surface was notoriously slippery and two employees had already successfully sought workers’ compensation for accidental injury. The respondent defended its action in dismissing the complainant by arguing that it had acted out of a statutory duty to prevent injury to ‘the worker’s’ health and the health of the unborn child. The Tribunal completely rejected this defence. It agreed that the respondent was under the duty it described but should have discharged that duty by correcting the defect in the floor surface - not by dismissing the employee.

'Essentially, what emerges is the absolute importance of developing proper, scientifically accurate standards of competence which are up-to-date, and factually relevant to the position in question.'

In summary, it is possible to distil the essential factors which an Anti-Discrimination Tribunal will examine in assessing the applicability of an occupational health and safety defence mounted by a respondent. Essentially, what emerges is the absolute importance of developing proper, scientifically accurate standards of competence which are up-to-date, and factually relevant to the position in question. Quite apart from the standards themselves, the nature and specific type of impairment which the complainant has must be addressed. The cases demonstrate that any attempt to apply such standards, even if relevant and scientifically up-to-date, to an applicant, without regard to the specific way in which the applicant experiences and controls the impairment will be unsuccessful. Added to this, it is obvious that Tribunals will not permit employers to cite the local occupational health and safety legislation as justification for dismissal and/or refusal to hire such employees where the workplace itself is inherently hazardous but easily rectifiable.

These cases have not been overturned on appeal. We can assume then that employers cannot rely on pre-employment medical assessments as a strategy to reduce their risk of personal injury litigation by‘culling’ applicants on the basis of impairment. It behoves both employers and professional occupational health and safety advisers to understand and abide by the principles of anti-discrimination in developing and applying their health assessment methodologies to both the task and the applicant.

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