Risk of harm
Yes, the Act provides an exception which allows employers to treat job applicants differently where there will be an unreasonable risk of harm to the applicant or to others which arises out the duties of the job or the work environment. For example, a person with a serious visual impairment who applies for a job as a driver may fall within the exception.
If a job applicant has a disability an employer must decide whether there is a health or safety risk resulting from the applicant’s disability and whether it is reasonable to take that risk.
Unless the job applicant is required to perform tasks that could involve a risk of harm an employer should avoid questions about disability. In the example given above of the driver, the employer would be perfectly entitled to ask questions about disabilities.
Where the risk of harm would be no greater than employing someone who does not have a disability, it would be unreasonable not to employ a disabled person who is the best-qualified applicant. The risk needs to be an actual risk rather than a perceived risk. For example, the risk of transmission of AIDS is almost nonexistent without blood or sexual fluids being exchanged.
Risk assessment decisions are likely to be based on medical advice or other appropriate expert advice and the relevant evidence.
The Act places the onus on an employer to reduce any such risk to a normal level unless this cannot be done without unreasonable disruption.