*The contents in this blog relates to legislation in New South Wales.
A common question we are asked by our clients at Turner Freeman Lawyers is do I have to disclose my previous workers compensation claim to my new or prospective employer?
The primary reason that prospective employers are hesitant about hiring employees who have previously claimed workers compensation is due to the increased risk that the employee has of aggravating their pre-existing injury while employed in their new role who could then become the financial liability of the new employer.
Having said that, lodging a workers compensation claim is a workplace right, there is nothing wrong with asking for the benefits you are entitled to after a work accident. This is why workers compensation insurance is a compulsory business expense. When you claim workers compensation, you are taking money from your employer’s insurer, not your employer. Most employers understand that accidents happen and will not hold it against you.
Employers need to exercise caution before refusing to hire someone due to their previous workers compensation claims history.
An employer who discriminates against a job applicant who has made a workers compensation claim may be in breach of the Fair Work Act.
It may be considered discrimination if the prospective employer refuses to employ a job applicant simply because they have previously made a workers compensation claim. However, it is not discrimination if the prospective employer refuses to employ the job applicant because of their workplace injury, if that specific injury prevents them from performing the inherent requirements of the job.
If a prospective employer does not ask you about previous claims, injuries or conditions, you are not obliged to disclose that information. However, if you do have an injury or condition that could impact on your ability to safely undertake your job requirements then you should be honest and disclose that information to your prospective employer.
If your claim has closed but you are left with some restrictions, you should disclose this to the prospective employer, as it may affect your ability to perform your job requirements. An employer has a legal duty to maintain a safe workplace for all its employees.