December 2006 page 48
Human Rights: ‘Judge me by what I can do – not by what you think I can’t’
Pre-employment medical assessments
By BROOK HELY
Brook Hely is a lawyer at the Human Rights and Equal Opportunity Commission
The use of pre-employment medical assessments as part of the recruitment process has been on the rise in Australia.1 However, when a medical assessment reveals that an applicant has a disability, employers must be careful to avoid unlawful discrimination on that basis, as the recent decision of the Federal Magistrates Court in Vickers v The Ambulance Service of NSW illustrates.2
Facts
Mr Vickers applied for a job as a trainee ambulance officer with the Ambulance Service of NSW. He passed the initial stages of the selection process, including an interview, and was then required to undergo a pre-employment medical assessment. The assessment was carried out by an independent medical service, Health Services Australia (HSA).
In the course of the medical assessment, Mr Vickers disclosed that he had Type 1 insulin-dependent diabetes. Despite providing a letter from his treating endocrinologist supporting his application, HSA recommended to the Ambulance Service that Mr Vickers was unsuitable for the position because of his diabetes. Acting on the basis of HSA’s recommendation, the Ambulance Service rejected Mr Vickers for the position.
Mr Vickers’ claim
Mr Vickers’ claim of unlawful discrimination had two elements:
- that the Ambulance Service’s process of selection amounted to direct discrimination “in the arrangements made for the purposes of determining who should be offered employment” in breach of s.15(1)(a) of the DDA; and
- that the decision not to employ him because of his diabetes amounted to direct discrimination in breach of s.15(1)(b) of the DDA.
Arrangements made
Mr Vickers referred to the decision of the NSW Anti-Discrimination Tribunal in Holdaway v Qantas Airways Ltd.3 In Holdaway the applicant was refused a position as a flight attendant because of Qantas’ express policy excluding all applicants for the position who had Type 1 diabetes. The Tribunal held that by applying a blanket policy excluding all persons with Type 1 diabetes, without considering a person’s individual characteristics, Qantas had breached the equivalent NSW provision of s.15(1)(a) of the DDA.4
Mr Vickers alleged that an equivalent blanket policy could be inferred from the circumstances of his case: that is, once his diabetes became known he was essentially ‘written off’ from further consideration. This followed from the fact that:
- his treating endocrinologist’s report stated, in effect, that he was able to carry out the inherent requirements of the position notwithstanding his diabetes; and
- the respondent’s expert medical expert at trial, Dr Adam, gave evidence that no person with Type 1 insulin-dependent diabetes would be fit to safely perform the duties of the position.
However, Raphael FM disagreed and held that there had been no breach of s.15(1)(a).5 Notwithstanding the views of Dr Adam, his Honour did not accept that the circumstances implied that a blanket policy existed excluding all persons with Mr Vickers’ type of diabetes. His Honour noted that:
- there was insufficient evidence that the doctors who assessed Mr Vickers (both of whom were unavailable to give evidence) were of the same view as Dr Adam; and
- there was no evidence that either HSA or the respondent subscribed to such a blanket policy.
His Honour also noted that the application process treated Mr Vickers equally with other applicants.
Inherent requirements
The Ambulance Service conceded that it had refused Mr Vickers the job on the basis of his disability. However, it relied on the defence in s.15(4) of the DDA that Mr Vickers was unable to carry out the inherent requirements of the position because of his disability. The inherent requirements of the position of trainee ambulance officer were stated by the respondent to be the ability to treat and transfer patients.
This defence was not available in relation to the first branch of the applicant’s case, under s.15(1)(a).6
The respondent submitted that it was not sufficient that Mr Vickers was physically able to carry out the inherent requirements of the position: he must be able to do so safely. The respondent emphasised that Mr Vickers was unable to do so safely because:
- when Mr Vickers feels that a hypoglycaemic event is coming on, he must act promptly to increase his glucose levels. This would divert him from driving the ambulance or treating a patient;
- Alternatively, if he failed to increase his glucose levels in time, the symptoms of the ensuing hypoglycaemic event would impair his ability to safely drive the ambulance or treat the patient, and might even lead to his falling unconscious.
Raphael FM rejected the respondent’s inherent requirements defence.7 The medical evidence of Mr Vickers’ treating endocrinologist confirmed that Mr Vickers had excellent management of his condition and took appropriate precautions to prevent a hypoglycaemic event from occurring. It was therefore unlikely that a hypoglycaemic event would occur at all. It was even more unlikely that a hypoglycaemic event would occur when:
- Mr Vickers was either driving an ambulance at high speed or treating a patient; and
- the 30 to 60 seconds required to either pull the ambulance over or stop treating a patient in order to consume some glucose would prove critical to the wellbeing of his patient.
The court emphasised that an employer may not exclude an applicant simply because the employer cannot guarantee the safety of that person or others. That would be putting the threshold too high. In line with the approach set down by the High Court in X v Commonwealth,8 the court must consider whether the risk posed by the applicant’s disability is unreasonably high in all the circumstances. This involves a balancing exercise which necessarily involves assessing the individual characteristics of an applicant.9
Lessons
The court granted Mr Vickers’ claim for $5,000 in compensation, although Raphael FM indicated that he would have ordered a higher amount if the assessment had been left at large. The court also directed that Mr Vickers’ job application proceed to the next stage of the process, namely probity screening.
The decision is a reminder to employers to carefully assess any risk arising from a job applicant’s disability. Crucially, employers must not be too hasty to reject an applicant based on the mere possibility of a risk.
In addition, Vickers reminds employers to consider the individual characteristics of each applicant in light of the inherent requirements of the position. An employer should not exclude an applicant due to preconceived ideas about limitations arising from his or her disability. As disability rights groups have said for some time: “Judge me by what I can do, not by what you think I can’t”.
ENDNOTES
1. See, for example, Guthrie R, “The use of medical examinations for employment purposes” (2003) 11(1) Journal of Law and Medicine 93 at 93.
2. [2006] FMCA 1232 (Unreported, Federal Magistrates Court, Raphael FM, 25 August 2006). The Acting Disability Discrimination Commissioner appeared as amicus curiae in the case, and was represented by the legal of section of HREOC. The decision in Vickers is available at http://www.austlii.edu.au/au/cases/cth/FMCA/2006/1232.html. The submissions filed in Vickers by the Acting Disability Discrimination Commissioner are available at http://www.humanrights.gov.au/legal/amicus/damien_vickers.html
3. (1992) EOC ¶92-395.
4. The relevant provision in Holdaway was s.49B(1)(a) of the Anti-Discrimination Act 1977 (NSW).
5. Vickers, [36] – [42], especially [39] and [40].
6. The defence in s.15(4) is only available in relation to a breach of s.15(1)(b) or s.15(2)(c): see s.15(4).
7. Vickers, [50] – [53].
8. (1999) 200 CLR 177.
9. Vickers, [46] – [49].
