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November 24, 2020

Question from Kate Fraser ([email protected])

A prospective employee has made a declaration of a pre-existing medical condition.
Are we allowed to provide that information to the person who will be her manager?
Do we need to ask the person if they require any modifications/adjustments based on her disclosure?
Is there anything else we should consider in being aware of this disclosure?
We are not thinking of not going ahead with the employment offer, but just wanting to make sure we’re doing the right things from both an employer and employee perspective. thanks

Dear Kate,

The Fair Work Act prohibits an employer from refusing to employ a prospective employee because of that person’s physical disability, unless the employer does so because of the inherent requirements of the particular position concerned. It is lawful however to ask the employee about their disability only to determine what (if any) reasonable adjustments the employer would need to make to enable the person to adequately perform the genuine and reasonable requirements of the job.

To avoid the risk of disability discrimination occurring when recruiting, you may determine and assess pre-employment tests such as medical, competency or psychometric tests according to the role requirements. You must ensure that they relate specifically to the job criteria and performance required for the role the candidate is applying for.

 There are indeed many considerations to be aware of. We refer to you topic Recruitment of the Employment Law Practical Handbook and to the attached ‘Step-by-Step: Avoiding Discrimination when recruiting’ resource for assistance.

Kind regards,

Benjamin Mann

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