By CHRIS PATTERSON
Q. A client I am working with applied to work as a courier driver, supplying his own vehicle.
The application form asked the question: "Do you have any ongoing illness which may affect your ability to work?"
The wording isn't exact but the meaning remains the same.
My client has an ongoing psychiatric illness, for which he receives treatment. When he began working, the psychiatrist gave him medical clearance to drive and to work. My client did not believe his illness would be a problem as he had been well for some time.
Unfortunately after working for five months, he has become unwell and has been put in hospital for three weeks. His condition has stabilised and he is able to work again, at reduced hours initially.
His employer has found out about the psychiatric illness and wants to dismiss my client, on the grounds that he did not declare his psychiatric illness on the application form. What rights does my client have in this situation?
A. The question on the application form is not uncommon, but it is also potentially illegal.
The Human Rights Act prohibits employers from using an application form that indicates, or could reasonably be understood as indicating, an intention to unlawfully discriminate. It is unlawful to discriminate against an employee or prospective employee on the grounds of disability, and this question could reasonably be understood to indicate an intention to unlawfully discriminate.
A psychiatric illness can be a disability and your client may have believed the question indicated an intention to discriminate against him.
Even if that was not the employer's intention, this is not relevant in asking whether the question has breached the Human Rights Act.
I recommend to employers that a better approach is to ask "Do you have any ongoing illness which may place you at an increased risk at work?" and to qualify it with "This question is being asked to ensure that we [the employer] can discharge our obligations under the Health and Safety in Employment Act should you be employed by us."
This eliminates any argument about whether the question indicates an intention to unlawfully discriminate.
Your client has the right to raise a personal grievance alleging that he is unjustifiably disadvantaged in his employment because his employer has expressed an intention to dismiss him.
The onus will be on your client to prove that the disadvantage is unjustified.
As well, your client could raise a personal grievance for an unjustified dismissal if it comes to that.
Then the onus will be on the employer to establish that there were good reasons for dismissal and it was conducted in a procedurally fair manner.
The law has recently been amended to enable complaints to be raised with both the Employment Relations Authority and the Human Rights Commission without having to stick to one particular agency.
The
Employment Relations Service website
contains information about the mediation service and Employment Relations Authority, and
contains information relating to making a complaint.
I strongly recommend that your client and his employer work together to avoid dismissal, as it is very rare to be able to mend relationships after a dismissal. This may be a case of the employer not understanding the nature of the illness and whether dismissing your client is an appropriate response.
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