Complaints about ‘intrusive’ personal questions in job applications – what can employers ask?

Where’s the line when it comes to personal questions asked on job applications? One applicant has challenged questions about depression, mental health and sick leave asked by a Z petrol station.

A complaint was made about the information sought by a Bay of Plenty store in a questionnaire for hopeful job seekers applying to make coffee instore.

They included: ‘Have you suffered or been treated for depression or any stress related disorder?’ and ‘How many absence days due to sickness or injury have you claimed in the last 12 months?’

Employers have to be careful their questions are appropriate to the role, an employment lawyer told Checkpoint.

Dundas Street employment lawyers’ Blair Scotland said in some circumstances it was not legally ok to ask a potential employee about depression or stress.

“Yes, on the face of it, for the types of roles we’re talking about here it does feel a bit intrusive.” But – “it’s always a matter of degree”.

Staff in petrol stations are sometimes shouted at, abused or even robbed.

“If the nature of the role is such that what goes on in a day-to-day basis – or some of the risks and hazards faced in that role – could make a medical condition worse, then the employer has obviously got obligations under our health and safety legislation to take reasonably practical steps to prevent from that,” Scotland said.

And that could mean they need to know about potential employees’ mental health.

“If you have a medical condition that could be made a whole lot worse by those things happening, an employer’s got some obligations to you, and ideally within the law is allowed to know about some of those things.”

“Some jobs are more stressful than others, for example if you’re a front-line police officer attending suicides, child abuse, that’s probably more stressful than my job, for example.

“People react differently to stressful situations. Some people are more easily able to handle it than others … an employer is entitled to ask in certain circumstances questions around this, and indeed if it’s not safe to be able to hire a person into a stressful environment like that, they can by law decline to hire someone. It comes down to a matter of degree and what is reasonable in the circumstances.”

However, Scotland said the question ‘How many absence days due to sickness or injury have you claimed in the last 12 months?’ raised concerns.

“I would always say to an employer ‘What are you actually fishing for here? What is it you are looking for? – Because it is very easy with a very blunt and open question like to fall into some of the prohibited grounds of discrimination under the Human Rights Act, [for example]: Have you got children who may be sick and under your care? – that would be an example of unlawful discrimination.

“But is the employer really asking: ‘Have you got any medical conditions that could prevent you from performing your role?’ – Well that’s a different question than ‘How many sick leave days have you had?’

“I think it’s a problematic question, and it raises the question of why are you event asking the question, for the employer.”

Questions asked of referees during the hiring process could also be discriminatory, especially those about family status, age, disability. But questions about criminality, laziness and ‘are you useless’, could be asked, Scotland said

Anyone who believed an employer had asked unlawful and discriminatory questions during a hiring process could complain to the Human Rights Commission, he said.

Bay of Plenty Z retailer Dave Gillies, who operates 10 sites in the Bay of Plenty, declined to be interviewed by Checkpoint, but in a statement said he did not discriminate against any applicant.

Workers may be exposed to customer abuse and aggression, and he is conscious of the toll this takes.

Gillies said the more he knows about his hires before they start work, the better support he is able to give them from the outset.

This job application form was a generic one for a number of different roles and applicants could skip questions, Gillies said, but after concerns were raised about it he is now seeking specialist legal advice, and a review and revision of the application.

According to the news on Radio New Zealand

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