The A-Z Pre-Employment Guide for employers & employees

D. 

DISABILITY

Q. Can an employer advertise that it's a requirement of the job to have good physical mobility?

A. Yes, as long as it's essential for the job.

For example, an employer who wants to hire an electrician to work onsite in commercial, industrial or residential buildings may require good physical mobility as an essential qualification for the job. However, good physical mobility is unlikely to be considered an essential competency for an administrative job.

The Act contains a concept known as reasonable accommodation. Reasonable accommodation means making changes to the workplace to ensure equal employment opportunities. For example, changes might include installing a different desk or modifying hours or patterns of work. Many such adjustments can be made with minimal expense and disruption.

All new employees involve cost to an organisation in providing office space, computers and other resources, induction processes, and training. Very little extra cost may be involved in accommodating an employee with disabilities and some can bring their own assistive technology into the workplace.

Where an applicant would otherwise be the best person for the job but it's not reasonable to accommodate that person's needs, or to do so would cause unreasonable disruption to the employer’s activities, there's no legal obligation to employ that person.

See also: Reasonable accommodation


Q. Can I ask an employer for vision enhancing software to be installed on my computer or for my future workplace to be modified for my wheelchair?

A. Yes, if it's reasonable to do so.

If you are the best applicant for the job and you have a disability that requires modification to the workplace or work practices so you can perform the job, an employer should undertake this work if it is reasonable to do so. In some situations, it may not be reasonable for the employer to undertake the necessary modifications. For example, it might be reasonable to provide vision-enhancing software but not to install a lift to provide access.


Q. Can an employer test me to ensure I'm not a carrier of illnesses or diseases?

A. Yes, if being free of illnesses or disease is an essential qualification for the job.

For example, a hospital might want to ensure the staff is free of MRSA (Methicillin resistant Staphylococcus aureus). Not being a carrier could be seen as an essential qualification given the known risks MRSA poses to medical care. The hospital would need to assess the Act’s reasonable accommodation requirements when considering job applicants.


Q. Do I have to disclose my hidden disability to a prospective employer?

A. No, if the hidden disability would not prevent you from carrying out the work satisfactorily.

The employer should let all job applicants know the requirements of the job and then then use the preemployment process to determine whether they are able to do the job. This could include asking whether they have any medical or physical conditions or disabilities that might prevent them from carrying out the work to a reasonable standard. 

See also: Honesty

DISCRIMINATION

Q. What is discrimination?

A. Discrimination is not defined in the Act. The Act simply makes it unlawful to treat anyone differently, with certain exceptions, on any of the grounds listed in s. 21(1) of the Act. The prohibited grounds of discrimination are listed here.

The Commission will accept a complaint if:

  • There is evidence that a person has been treated differently
  • The different treatment can be attributed to one of the grounds of unlawful discrimination
  • The treatment disadvantages that person.

DOMESTIC EMPLOYMENT

Q. Can I advertise for a young person to be a nanny in my house?

A. Yes you can. The Act makes an exception for domestic employment in a private household.

DRESS CODE

Q. Can an employer ask me to comply with a particular dress code, such as how to arrange my hair or what I must wear at work?

A. Yes, if the employer has policies (for example a health and safety policy) that require employees to wear a uniform or a dress code, or a policy relating to appearance and grooming, that may require a change of appearance or hairstyle.

However, the Act may protect against discrimination where appearance or hairstyle is an aspect of religion or ethnicity. For example, an employee who is a Sikh and wears a turban would not have to remove it unless wearing the turban would breach health and safety requirements.

Appearance or hairstyle that is not specific to religion or ethnicity is not protected by the Act.

DRUG TESTING

Q. Can an employer refuse an applicant a job because they will not take a drug test?

A. Nothing in the Act stops an employer from insisting on drug testing. Whether it is appropriate for a job applicant to undergo a drug test will depend on the nature of the job.

Testing can be a legitimate requirement for a safety-sensitive role or environment. In certain occupations, for example a pilot or a bus driver, being drug free is a genuine occupational requirement because of public safety.

The quality of testing devices on the market may be questionable. Job applicants should be given the results and have the right to challenge the results. For example, a job applicant who is on the methadone programme may be safe to do the work and should not be rejected out of hand because of a failed test.

Section 19 of the Health and Safety in Employment Act obliges an employee to take all practical steps to ensure their own safety while at work and to not cause harm to any other person while at work.