Dangerous assumptions

first_imgDangerous assumptionsOn 1 Oct 2000 in Personnel Today Comments are closed. Previous Article Next Article Forming judgements from a candidate’s medical history alone can bediscriminatory. Any recommendations need to be based on scientific evidence, inline with current disability law.  By GillianHoward Many OH practitioners may have been in a similar position to the companydoctor advising the London Borough of Hammersmith & Fulham. Exactly whatshould an employer be told about a job applicant’s pre-existing medicalcondition, particularly when a job applicant with a history of mental illnessis recommended for a potentially stressful post? OH nurses must rely on scientific evidence as the basis for their advice andnot make assumptions that such illness may recur rendering that personunreliable – however unpalatable that may be for line managers. Employer duties Can an employer be held liable for disability discrimination if it does notknow the person has a disability? The answer is “yes”. The Disability Discrimination Act 1995 imposes serious duties on employersto make reasonable adjustments to their workplace where they know or”could reasonably be expected to know” that the person concerned hada disability. If actual knowledge of a disability had to be proved by anemployee or job applicant, the more obtuse and ignorant the employer couldprove they were, the greater chance they would have of getting off. The tribunals have held recently in the case of HJ Heinz & Co v Kenrick[2000] IRLR 144, that “knowledge” in the context of the DisabilityDiscrimination Act 1995 does not mean the employer has to have detailedknowledge of symptoms or aggregation of symptoms. The fact the employer takessome form of detrimental action against someone because of the consequences oftheir disability would be regarded as an act of discrimination. A simple example is that of a secretary who is dismissed because, despiterepeated training, they persist in typing misspelt letters. Yet without theemployer, or even the employee, knowing the reason for the errors was notignorance or carelessness but dyslexia. Employers are expected to investigate and question for themselves why anemployee may not be performing 100 per cent or consider the possible underlyingreasons for sickness absence. In Kenrick’s case, the Employment Appeal Tribunal (EAT) held that there isnothing in the language in section 5(1) of the 1995 Act that requires the relationshipbetween the disability and the treatment to be judged subjectively (ie throughthe eyes of the employer). The correct test should be the objective one ofwhether reason for the treatment in question related to that person’sdisability and not whether the employer knew of the disability. “Indeed”, the EAT noted, “unless the test is objective therewill be difficulties with credible and honest yet ignorant or obtuse employerswho fail to recognise or acknowledge the obvious”. Giving advice When occupational health physicians give advice about the recruitment ordismissal of a worker, it is important the advice is based on sound scientificevidence and is given in the context of the anti-discrimination legislation. For example, it is unacceptable for an adviser to recommend that anapplicant for a job who is pregnant be rejected on the grounds she is morelikely to have time off and to take a period of leave shortly before and afterthe birth. This treatment is unlawful and protected under the Sex DiscriminationAct 1975. Similarly, recommending that an applicant be rejected for a post becausethey have had had a previous depressive illness, have recovered well, have nothad recent hospital treatment and who have received good references including theirreliability and ability to undertake stressful tasks from a former employerwill inevitably held to be unlawful under the Disability Discrimination Act1995. This is what happened in a recent case involving the London Borough ofHammersmith & Fulham. In Farnsworth v 1) London Borough of Hammersmith & Fulham and 2) DrCooper the second respondent, the occupational health physician, had written tothe council stating that the appellant had had health problems over severalyears, “which at times had been severe and had necessitated hospitaladmission, the longest of which was about 10 months in 1992/3. It appears thather most recent hospital admission was in March 1996 for four days. AlthoughFarnsworth’s general practitioner reports that Farnsworth’s health had beengood over the past year, in view of her medical history, I am concerned thatshe may be liable to further recurrences in the future. If such a recurrencewere to occur, her performance and attendance at work could be affected.’ The employer tried to argue it had no knowledge of Farnsworth’s previousmental illness and therefore could not be held to have discriminated under theAct. Anyone, however, reading the words “the appellant had had ill-healthproblems over several years, which at times had been severe and hadnecessitated hospital admission, the longest of which was about 10 months in1992/3” would know that this job applicant had had a major illness at sometime in the past. The EAT held that the tribunal found as fact the employer “knew orshould have knownÉof Farnsworth’s disability”. Conclusion Every occupational health physician and nurse should ensure they are up todate with case law on the Disability Discrimination Act 1995 and that theyunderstand the potential minefield that they are entering when writing ormaking recommendations as to fitness for work. The Disability Discrimination Act 1995 protects people with disabilitiesfrom discrimination on the grounds they have or have had a disability, unlessthis can be justified. “Justification” in s5(3) of the Act means the employer has to showthat the reason for the discriminatory act is both “material to thecircumstances of the particular case and substantial”. The word”material” means relevant and “substantial” means that thedisability must have a significant impact on their ability to do the job inquestion. In this case, the circumstances were that Farnsworth had recovered well fromher previous depressive illness and her most recent hospital treatment had beensome three years earlier for four days. Her own GP had reported that health had”been good over the past year” and she had held down two part-timejobs in the same field successfully. There could therefore be no justificationin law for taking the view that because of her past illness, she wasunemployable. Gillian Howard is a consultant at solicitors Howard & Howard Farnsworth v London Borough of Hammersmith & Fulham and Dr Cooper:what went wrong?1. The council and its OH physician assumed that Farnsworth’s attendance inthe future would be poor. There was no reason to assume this as her health hadbeen good since 1996 and she had held down two part-time jobs since that timewith no reported attendance problems.2. She had received excellent references and no mention was made of poorattendance or attendance problems. 3. The first respondent had relied upon its OH physician’s”assumption” that Farnsworth “would have a poor attendancerecord”.4. No chance was given to Farnsworth to comment on the possibility that herattendance would not be up to standard. It is important to give feedback to ajob applicant where a medical history has been revealed and to act promptlyafter the results of a medical assessment are known.5. No discussion took place with her after the first respondent withdrew thejob offer.6. The tribunal noted that, in fact, Farnsworth had to write to the firstrespondent expressing her “anxiety at not having heard from the firstrespondent as to the progress of her application”.7. The EAT held that there was no justification for the second respondentrecommending withdrawing the offer of employment.8. There was no objective evidence that Farnsworth’s attendance would not beup to standard. There was no reason to presume that her attendance record wouldnot have been “first class”.9. In the code of practice published under the Disability Discrimination Act1995 in paragraph 4.20, paragraph C7 it states: “Where a person has amental illness such as depression, account should be taken of whether, althoughthat person has a physical ability to perform a task, they are, in practice,unable to sustain an activity over a reasonable period”.10. Farnsworth had satisfied two employers working in a part-time capacityand appeared to have conducted both those jobs satisfactorily.11. She probably would have initially been employed on a probationaryperiod, during which time her attendance and conduct would have been moreclosely monitored. 12. Dr Cooper did not base her decision on fact but on certain(discriminatory) assumptions. Related posts:No related photos.last_img read more