Occupational health assessments – Tips to avoid the traps

The Employment Equality Acts prohibit discrimination on nine protected grounds, one of which is disability. An employer must not subject an employee to less favourable treatment on grounds of a disability. The legislation also provides that an employer is not obliged to recruit, train, retain or promote an employee who is not fully competent to undertake the duties required of their role. This provision is subject to a very important caveat. An employer must put in place appropriate measures to reasonably accommodate an employee with a disability and render them fit to do their job. This article provides key tips for employers and occupational health professionals to be aware of with regards to this legal requirement.

Tip: don’t under estimate how broadly “disability" is defined

Caselaw has shown that the definition of “disability” is given an extremely broad interpretation. Conditions such as back injuries, asthma, visual impairment, anorexia, low BMI, depression, IBS, alcoholism and hearing loss have all been held to constitute disabilities within the meaning of the legislation. It has also been held that hypertension, even where treated and well managed, constitutes a disability. The definition does not require that a condition meet a certain degree of severity to constitute a “disability” from a legal perspective. At European level, recent caselaw has also further expanded the definition with a judgment that obesity can constitute a disability for employment equality purposes.

Tip: the duty to provide “reasonable accommodation” is not defined but is a high threshold

The extent of what constitutes “reasonable accommodation” is not defined in the legislation, however, it is provided that it must not impose a disproportionate burden on the employer, taking into account the following:

• The financial and other costs entailed.
• The scale and financial resources of the employer’s business, and;
• The possibility of obtaining public funding or other assistance.

This places a high onus on many employers and what will be reasonable accommodation in one organisation may not be in another but it is generally the case that demonstrating a “disproportionate burden” is a fairly high threshold on an organisation to meet. An employer must give serious consideration to any possible options to facilitate an employee and should do so in conjunction with medical advice. Reasonable accommodation can include:

• Making physical adjustments in the workplace.
• Allocating some of the disabled person’s duties to another person.
• Transferring the disabled person to another vacant post, with or without reasonable adjustments being made.
• Altering the disabled person’s working hours.
• Providing special equipment to assist the disabled person to perform his/her tasks.
• Providing training in the use of special equipment.
• Consideration of part time or at home working on a phased or ongoing basis.

Tip: retain records of efforts to consider reasonable accommodation

An employer should be in a position to show that they have given full consideration to a broad range of accommodating measures and must also be able to stand over a decision why certain measures could not be implemented or were a disproportionate burden. This will necessitate keeping evidence of the financial cost of alternatives and the employer’s own financial situation. It is not good enough for an employer to simply say that they cannot implement a certain measure without being able to explain why not.

Tip: understand the importance of following a fair procedure

Caselaw under the Employment Equality Acts has constantly reinforced the importance of following a step-by-step procedure when dealing with disability issues, particularly when considering termination of employment on grounds of incapacity. These steps can be summarised as follows:

• Get possession of all of the material facts relating to the employee’s disability and its impact on that employee’s specific role and duties. This will require a medical assessment to determine the impact of the condition on the employee’s ability to carry out the duties associated with their role and likely duration of that condition.
• If an employee is not fully capable for their role, reasonable accommodation must be considered.
• The employee must be allowed an opportunity to participate in each stage of the process and influence the decision.
• The employee must be made aware that dismissal for incapacity is being considered.

Tip: avoid referral pitfalls

Managing disability issues in the workplace can be a costly lesson for an employer who fails to follow the requirements under the Employment Equality Acts. A key first stage in the process is obtaining a medical assessment of the employee. Employers must clearly specify in advance the purpose of the referral which can include fitness for work generally or fitness to participate in an investigative or disciplinary process. An employer should only give relevant material containing facts and instructions to the occupational health professional. A further trap for the unsuspecting employer can be the criticism of any effort to influence the medical assessment which can occur by having informal discussions by phone or sending separate instructions to the medical practitioner.

Tip: ensure compliance with the Data Protection Acts

The employer and occupational health professional should be aware of the ability of an employee to gain access to any instructing letter or notes which are held by the employer or the occupational health professional under the Data Protection Acts. Medical information constitutes “sensitive personal data” and therefore is subject to stringent obligations as to how it is stored, communicated, accessed or otherwise processed.