Asperger’s is a health and safety concern, court finds
Employees will often disclose illnesses or injuries when they are subject to performance management, particularly if they are fearful of losing their income.
However, an employer should not assume that such a disclosure is an attempt to excuse poor performance.
As a matter of law, employees must exercise reasonable care to prevent injury to themselves and others. Therefore, they must advise whether they are fit to undertake the inherent requirements of their job.
So if an employee discloses sensitive health information about themselves, what can be done with it?
How and for what purposes can this information be used, and who can be told?
An important legal case in 2017 helped to provide clarity to these questions.
In Anglo Coal (Capcoal Management) Pty Ltd v Workers’ Compensation Regulator & Etherington (2017), a surveyor claimed his supervisor was wrong to tell health and safety and HR managers about the worker’s Asperger’s diagnosis without his consent.
The employee had been given a first warning about his work performance, but felt it was unfair. However, he became so concerned he could lose his job that he sought psychological support.
He then found out he had Asperger’s and advised two of his supervisors.
The employee subsequently complained that his following performance management (two disciplinary outcomes) and the supervisor’s disclosure of his Asperger’s to other staff amounted to bullying and harassment and that he was made to feel “targeted, ostracised, undermined and discredited”.
As a result he suffered a major depressive disorder which he successfully claimed workers’ compensation for.
The employer had taken the right action
Anglo Coal successfully appealed the decision to award the worker.
The Queensland Industrial Relations Commission (QIRC) held that the employer’s actions constituted reasonable management action.
It found that the supervisor was concerned with the diagnosis so he sought help from the health and safety team to determine whether the diagnosis meant there were added risks for the employee in the high-risk mine site.
The supervisor had read literature on the diagnosis and wanted to work out how to make the workplace safe for the employee.
The health and safety manager then consulted with their occupational therapist. Together with HR, they considered what reasonable adjustments might need to be made to the worker’s role to ensure his safety.
All of the steps taken were by skilled people trying to advance the safety of the employee. None were taken to simply gossip about or stigmatise him.
The QIRC held that the purpose of the disclosures (albeit not consented to by the employee) were to “ensure that [he] was not adversely affected by his diagnosis” and found that the managers were “acutely aware” of the need for confidentiality.
The staff who were made known of the employee’s condition were involved with his care and management and the information related to his capacity to safely undertake the inherent requirements his job.
The actions taken were to ensure that the employee was safe at work and determine if any reasonable adjustments needed to be made.
From the experts behind the Health & Safety Handbook, the Bulletin brings you the latest work health and safety news, legal updates, case law and practical advice straight to your inbox every week.