Employment and Potential Discrimination at Interviews etc ...

I’ve made this Post as a result of a few things in Chat – this is important info for any of us considering employment or a change of employment.

Q. “Can I be asked if I have ever experienced mental illness, for example depression?”

A. “No, an employer should not ask to be provided with general information about a job applicant’s medical/ACC history but should seek to establish only whether a job applicant has the abilities needed for the job. This includes establishing whether an applicant has any medical conditions or disabilities that might mean the work could not be satisfactorily carried out.

Mental illness is part of the definition of disability which is one of the grounds of discrimination prohibited by the Act, Appendix 1, which sets out the prohibited grounds of discrimination, includes the full definition of the meaning od disability.

A job applicant should first be made aware of the job’s requirements and then asked about any medical conditions or disabilities that might prevent them from carrying out the work satisfactorily.

Job applicants who have experienced mental illness often do not disclose that fact because they fear discrimination.”

Source?

‘Getting a Job. An A to Z for employers and employees.
Pre-employment Guidelines.

Human Rights Commission publication, ISBN 978 0 478 32901 8.
www.hrc.co.nz


Paddy.

Paddy thats all very well but the application form asks you to tick the box if you've ever had a mental illness.

If you don't tick the box then you have committed fraud by signing the bit that says "everything contained herein is the truth blah blah..."

You also have to sign a disclosure of information in most application packs today for a govt job which allows the crappy employers to look up yer past form, your sickness leaves, (which is another question they ask for a reference.. what was attendence like and sick leave history" I have seen these forms that referees have to fill out., and us loonies sometimes use up a lot of sick days.

Under employment law and health and safety leglisation you have to disclose that you have had or have a mental health issue. In most job application forms they ask if you have or had any health issues that may affect your ability to do the job.

Failure to disclose can see you being dismissed.

In my mind it is better to disclose than not, you also find out if they a supportive employer by discloseing, If they discriminate then you wouldnt have wanted to work there anyway.

The reason for disclousre is to protect you and your health. If you disclose you may be able to negoiate with your emplyer leave, they will be aware of your health issue so they can support you in your job.

Ros,
can you please link specific Case or Statute Law which supports your post? I'd be most interested to read the decisions etc.
Sorry, I don't agree with your post, Ros.

The mere fact that an employer may have a question or set of health questions on their Form, does not make that all of that questioning lawful.

The legislation and information on how not to discriminate, has been readily available in a number of ways to employers for years.

Having a Form which requires an applicant to provide an answer to a personal medical situation as a means of screening or otherwise, is more likey to show that the employer is breaching Human Rights as a matter of course than ooops, that was an one-off accident, sorry.

Amongst other things, I have Bi Polar Disorder. How would pre-employment knowledge of that assist a person in deciding if I was fit and suitable to an desk job in a ground floor work situation?

Other than the fact I don't much like telephones, where lurks the relevancy of my BP?

Presumably I have decided I'm fit enough and the hours etc obviously suit, or I wouldn't apply. So how is the employer helped - more importantly, how am I helped.? Negotiate extra leave as a result of declaring and saying Yes to an unlawful question? One could possible negotiate quite a bit more in that dodgy situation given a good lawyer.

I don't consider that you gave a 'real world' answer Ros - it may be a simpler process in some NFP workplaces etc but in the commercial world? But then, lots of things in an employment situation can be negotiated over time. Often downwards, for the employee.

Was it not just last week that employer advocates and National Govt supporters were calling for an end to so called 'Mental Health Days' for employees? That phrase was used, targeted. Don't bode well for us, does it?

Back to me - Going up a floor in the building - now then I see some of my medical conditions being potentially problematic, but not unbeatable. Believe me, a manic-depressive me, on crutches or not is still gunna be one of the first down the stairs when the fire alarm goes and they have a building evac for real. Bet lots of folk might have a wee panic attack around about that time? Should that potential be disclosed?

Sorry Ros, but unless you can convince me by Case Law or the exact Statute and Clause etc, I can't agree with your interpretation.

I'll stick with what the HRC etc say until I can read otherwise with me own eyes and digest the full import of the rulings etc.

Anyone else who might have Links etc to factual information is welcome to put them up please, 'cos I love learning and Employment Law is an area in which I've successfully worked. Here is an historic Internet Link - an archived copy of an employment relations website I had way back in 2002 : http://web.archive.org/web/20021122211426/http://badbosses.co.nz/

Paddy.

Hi Guys,

I had a chat with the Human Rights Commission and the Department of Labour.

The Human Rights Commission deal with any discrimination case. I asked them if a potential employer may asked if you have experienced a mental illness. According to the Human Rights Commission it is a lawful question and they are able to ask it within reason. There is a proviso that they can only ask it if it revelant to the job you are applying for. For example if you will be working in a steressful environment they are fully entitaled to asked and you have to disclose any steress related illnesses.

There were a couple of high profile cases reported in the media last year, sorry Paddy I dont have links to the articles or Employment case law.

The first case was a fire fighter who was dismissed because he failed to decleare he had been treated for post tramatic stress disorder. He took and unjust dismissal case to the employment court and lost.

Another case was a nurse who was advised by her doctor not to work night sights and that she had to develop a regular routine. She was dismissed by the DHB because she was unable to do her job as contracted even though she had other nurses who offered to cover her night shifts.

Under the Health and Safety in Emplyment Act 1992 an employer also has an obligation to eliminate or minise exposure to harm. Under the Section 2 of the Act harm is broadly defined and means an illness or injury and includes physical/mental harm caused by work related stress. A hazard under the same section is defined as an actual or potential source of harm and includes mental futigue.

I'm no expert but is seems to me that whether or not they are allowed to ask a question.. you are still in a spot if any dodgy questions are asked. You can hardly avoid answering them without looking like you have something to hide.

I had a similar question on an insurance form for an offer of an extention of cover... it was a great deal til I saw the question about taking medication , (not sure whether it specified for a mental illness), which effectively indicated my health had deteriorated since i first got my policy. I couldn't tick it so I couldn't take the extra cover

I quite agree, Roswell. Screening questions can and should be asked when there is sufficiently good cause for them to be.

I also know a bit about service in a Fire Brigade – I was a volunteer fireman based at Waiouru in the early 80’s – we covered a lot of really not very nice MVA’s on and around the Desert Road – along with the usual houses burning down from hot ashes on a porch in a cardboard box or plastic bucket (not clever), fires in training areas from vehicles or ammos and yeah, they were unpleasant and busy enough without worrying overly about the soundness of the bloke or blokess next to ya.

This poor chap you mention must have acknowledged or demonstrated that in some of the situations he might be needed to respond to, he may have some demons pop up. I hope he is able to access all the help he needs to work at finding his solutions and resolutions to them if he's able to but yeah, not whilst on duty.

I’m sure than anyone working in any emergency service would want to know just as much as they can, that the person on whom their life might depend the next time the pagers go off for real isn’t maybe about to go all jellyfishy and become a liability when every hand and brain is needed – and as you say, the employer the Fire Service, has a right to know because it has a genuine need to know.

Once it knew, the employer could not risk that employee in the role in which he was employed; not for his sake, for his colleagues, for the public or for the Service. It’s not quite the same as having to rely on Joe at the adjacent hotplate toasting burger buns at a takeout joint, is it?

And a person who can’t, because of a pre-existing medical situation, meet the employers reasonable needs for shift work, when the job applied for said its shift work, ain’t going go to get far either in any claim.

There is nothing glaringly unreasonable in the decisions for either situation you mention Ros and yeah, I can easily see where there was an onus to be forthcoming over those disabling aspects of their life.

The test is Ros, does the same degree of invasive questioning and answering apply to every position or situation and the HRC will tell you, No. The key is ‘what is reasonable’.

Does a person applying for a supermarket night fill job or a clerical position need to disclose as much necessarily, as a health or emergency services worker? The test is:
What is reasonable to ask to enable an employer to make an employment decision, without requiring the applicant to ‘over disclose’ that which may have no significant bearing on the applicants’ ability to perform the duties required in the required manner etc.

Of course not all ‘jobs’ are equal and in some, there is a justifiable need to know by the employer – and in others, there isn’t the same reasonable need. Yep, they are hard questions to avoid answering, but maybe that’s because not enough people know and not enough people make a noise about it. Asking an illegal question a million times on any number of forms still does not make the question legal. Understandable that many employers do get away with it, but - jobs are few ‘n far between for many folk.

And Yes, OSH has its place, Ros, I couldn’t agree more. But please, don’t suggest that one need have an mental illness to feel stress at work. Causation of workplace stressors are many and varied.

Relax, I’m not suggesting a revolution, I’m simply stating that some pre-employment questioning is in some circumstances unreasonably and unlawfully used for ‘screening’ and that not every job will require the same level of ‘disclosure’ of medical matters.

Its good that you're doing this sort of research Ros, it says a lot for your dedication to your Consumer Advocacy role. I should get off my bum and do something. Bah Humbug.

Paddy.

Wowinnz, you're right - in Insurance terms, it is a big thing that usually needs be disclosed, alas - cos they have so many ways to say No. Whilst charging more for less.

http://www.mentalhealth.org.nz/file/downloads/pdf/I-havent-told-experiences.pdf

Worth downloading and reading - not necessarily all in one go. Page 53 I think is interesting. Pity the whole thing waffles on even more than I do, but.

The decision to disclose is huge - and a highly debated issue both in mental health and in disability fields. I know of people in both who have experimented with disclosure. All found that if they did not disclose mental health or disability in inital application got job interviews in those that they did disclose in application didn't hear anything else - interesting!

I would be keen to hear if anyone else has the same problem that I now have -
Thanks to the NZ police stating on my police vetting that police hold information on suicidal and self harm that should be discussed prior to employment I don't have a choice in disclosure. While i don't disclose in my application, once at the interview i have no choice, however 17 job interviews later I have given up. You literally watch the faces close down.
Also my mental illness prevents registration with either the social work registration board or Alcohol and Drug practitioners board, therefore Can't work in the areas I trained in.
The local SUpported Employment agency tells me the only job they could help me get is filling supermarket shelves with a bachelors of applied social science, social work major, PGDIP Rehabiliation and just my thesis to do for my masters.....
So basically the police are qualified to make a decision about whether ones mental health impacts on their ability to work. For me I am destined to spend the remainder of my life filling supermarket shelves or sitting on a benefit not much of a choice!