When recruiting, employers will commonly ask workers about their health status.

But what happens if they are not honest?

The case of Sills v State of NSW (2018) highlights what can happen when an undisclosed pre-existing injury or illness becomes exacerbated because of exposure to circumstances that cause further damage to the worker.

The police officer complained that her role exposed her to trauma, causing her post-traumatic stress disorder (PTSD).

The employer argued that she didn’t disclose her underlying vulnerability at the time of her employment, or when she was asked afterwards.

Had she won the damages claim, she would have been awarded more than $14 million.

However, the NSW District Court held that there was no breach of a duty of care as she did not disclose her underlying health risks.

In another case, Ellis v Toll (2012), it was held that a failure to disclose health information about a pre-existing back injury was not a fundamental breach of the contract of employment warranting summary dismissal, despite the re-emergence of the back injury later in the worker’s employment which prevented him from doing his job.

Toll did not advise the worker about what a failure to disclose this information would mean for his ongoing employment.

When recruiting, it is important employers ensure that:

• job candidates know what the requirements of the position are so they can decide if they are fit for the job;
• job candidates understand that a failure to make an honest disclosure of health information can, and will, lead to disciplinary action up to and including dismissal; and
• the examining doctor or health professional receives the task analysis and job description and reports only on the capacity of the worker to do the job, not on unrelated health information that may amount to a breach of privacy law.

Under health and safety laws in every jurisdiction, workers have a duty to exercise reasonable care to prevent injury to themselves.

Thus, if the employer has the necessary health screening procedures in place, workers have an obligation to disclose any pre-existing illness or injury that could affect their ability to perform their job.

You need to make it clear to your workers that they are required to advise you when they are not fit for work, and to be open about any health treatment they receive and adjustments they may need in the workplace.

3 ways to prevent finding out about a health issue until it’s too late

1. Develop a health screening process with a statutory declaration for candidates to sign when they start work. It should be attached to the task analysis and job description.
2. Ensure your assessing health professional has the task analysis and job description and knows they should limit their response to be job specific.
3. Have clear policies and procedures that require constant disclosure of your workers’ health status where it affects their capacity to undertake their tasks.

This process prevents injury to workers and permits the dismissal of a worker who makes a false declaration of health, or fails to advise you of risks to their health while employed.