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David Mitchell
Member - 5 posts
Thank you Andrew.
There are a couple of points to which I'd like to respond. I am the Managing Director of my small company. It is a family business, and two other family members are also directors. I and my son carry out the interviews. There are no "managers" to whom the application forms are handed. Therefore, the information contained therein remains confidential. However, don't lose sight of the fact that working colleagues talk and gossip, and I will lay a pound to a pinch of snuff that within a couple of weeks of a new employee starting he/she will have disseminated details of their own situation without any form of help from me, and everyone will know the ins and outs of a duck's you-know-what.
One of my employees had always suffered occasional migraine attacks, and about a year ago started to experience severe bouts, and agreed to undergo some clinical trials following medical failures to find the root cause. We learnt (from the shop floor, where else?) that he had been prescribed some new medication which appeared to make him somewhat distant, at times a bit clumsy, and was manifesting a slower work-rate than usual.
To emphasise - the information came from others, not the employee himself.
I am obliged to exercise a duty of care and, considering that his job entailed the use of machinery, under the Health and Safety umbrella I asked if his job had been taken into account when the new medication had been prescribed.
I also contacted our HR consultants (who also look after our H&S management) about the matter. Their advice was that I should go through the long-winded process of seeking the employee's permission to contact his GP. A professionally prepared letter seeking permission was drafted for me. The employee agreed and signed the letter. Another professionally prepared letter addressed to the employee's GP was also drafted, simply requesting certain relevant information in bullet-point form. It requested nothing which attempted to breach GP/Patient confidentiality. Both letters were sent. Nothing extraodinary in that. Two months later I received a curt, almost rude, reply from the employee's GP, asking for £75.00. Apparently, that's quite cheap compared to some charges. However, when I received the GP's reply, it contained no responses whatsoever to the points as requested, and we gleaned absolutely nothing from it. It was a useless excercise. The GP had the cheek and affrontary to tell me that I ought to read up on employment law.
My outsourced HR professionals suggested that I made arrangements with the employee for an informal meeting with him and his wife, which they agreed to, and we all sat down over a cup of tea, and just let the conversation flow, allowing them to do most of the talking - mainly about the case history, the lastest tests and the kind of medication. We got more personal details about the case than any GP would have volunteered. They agreed that there was a risk of drowsiness, but it was possible to take the tablet of an evening, allowing any effects to be slept off overnight.
Since then, the employee hasn't had a single day off sick through migraine. Now then - is that because the medication works, or because we took the trouble to talk?
The point of that anecdote is to show that we do have perfectly acceptable and legitimate means at our disposal to ascertain an employee's full ability to carry out their normal duties without breaching any human rights or confidentiality on medical grounds. However, they're a fat lot of good if the medical profession won't play ball. We try to "do the right thing" by our employees, but are then stymied by an arrogant, self-opiniated GP. That's not the employee's fault, but it leaves us with a not-so-pleasant alternative perhaps of asking our own appointed GP to act on OH grounds.
I've never found that to be necessary, but when I make the right moves under professional guidance, I don't expect to be fobbed off.
By the way, the employee had suffered from migraine attacks for many years before he joined me - a fact which somehow miraculously escaped being mentioned on his application form.
That's three of my employees so far. Only eight to go.
When an employee is absent, for whatever reason, his colleagues suffer. They have to fill in - and a single absence can represent a large proportion of the team. Chronic illness, whether seriously debilitating or simply of "nuisance value" has to be investigated if we, as employers, are to carry out our duties and responsibilities. We are not helped by those in the medical profession who see themselves as above or beyond a similar duty to help.
I would bet that, if something happened which required contact with a GP who decided to volunteer certain information - which hadn't been declared from the outset, and to which we might answer "well, we didn't know", he/she may just say, "But you didn't ask"...........
By the way, Andrew, companies of similar size to my own don't have the resources to go in for "Health Screening". We have to take people at their word. That last sentence is the nub of my complaint. Employees can lie with impunity and we have no course of redress whatsoever. Larger organisations who employ such vast numbers of personnel probably include Health Screening measures because, statistically, they've been caught out too many times.
Your next to last paragraph opens with a sentence which strengthens my argument. ".........most pre-employment health questionnaires are completely worthless".
However, it doesn't give people carte blanche to lie.
Here are the "health questions" from my application form.
Are you in good general health? Yes No
If No please state medical condition.
Are you receiving any medical treatment? Yes No
If yes, please state what?
Do you have any form of disability? Yes No
If Yes please give details of how we can help you overcome these limitations.
Please list any absence from work in the past 12 months and state the reasons for them.
Guess which answers were given by the employee in question. If it were possible to scan the document and post it here, I'd do so. I think you can guess from my tone that I suspect that you wouldn't be surprised by the answers.
From my standpoint, I've said all that I can. If others wish to continue to contribute, there's no problem. It's not my forum. It's just that I need to get on with the business of running my business. Thank you for your contributions, may you all prosper. That's not arrogance, that's a genuine wish. To those who celebrate it, have a Happy Easter Weekend. David JM.
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David Mitchell
Member - 5 posts
Well, the thread has moved on a little and became slightly OT at times, but that's what forum postings do - they are a form of conversation after all, and I can just imagine how boring a dinner party with friends would be if there was only one topic of conversation all evening.
Far from being "scared off", Carole, I chose to let the topic run without any further input or response in order to gather the varied points of view, and see what developed. After all, I have no other choices in the matter, but it remained interesting to read other comments and views.
I agree entirely (voluntarily, and not because I have no legal right to do otherwise) that anyone who endures any form of disability (what a horrible word), no matter how slight, is entitled to work. My original posting was born of the frustration I felt that non-disclosure of a health issue could not be applied within the framework of employment law as a falsification within an application of employment. It was not, and probably wouldn't have been, a non-disclosure of a disability, as the employee doesn't appear to see his condition as such. I viewed the matter as being no different to an application which contained any other form of material shortcomings. In other words, untruths - and I emphasise: as a means to either gain employment, or as a means of avoiding refusal.
I subscribe to a well-know firm of Employment Law specialisst to whom I turn for all my HR and H&S advice. It costs a lot each month but I wouldn't make a move without them. It was they who advised me that, even though there was technically a failure of honesty, which in itself could form the basis for disciplinary action and possible dismissal for falsification, the subsequent disclosure of the health matter immediately made it a matter under the DDA.
I'm sorry, but it is matter of dishonesty. If an applicant feels that disclosure of a medical condition at interview stage may jeopardise their chances of employment, and therefore deliberately choose not to mention it, they are wilfully engaging in a cynical ploy to gain employment through dishonesty.
Also - and look out, here comes another can of vipers - doesn't that imply reduced faith that their abilities to carry out the job will more than override their disabilities?
This has strengthened my view that any disability, no matter how slight, must be declared at interview. If it is found that a more qualified, (disabled) candidate is ignored in favour of an able-bodied one, there will obviously be a case within the DDA - but not if the disability is revealed after the event - surely ???
I engage a formal "points system" during and after interview, to help with a non-subjective appraisal of candidates. It's not going to be infallible - but it offers some guidance for "close-run" situations.
I have to say that the employee in question is doing well in the position for which he was engaged, and although he needed a couple of days off sick this week, his attendance record - and his work ethic - is better than several others in my employ.
Finally. Several years ago I had a fresh requirement for a Production Welder. I interviewed a few candidates, including a weld-test, and showed each around the factory including their prospective working area. At the end of one of the interviews, having decided that a particular candidate was right for the job, I offered him the position. We agreed the pay, he was aware of the other T&C's, and I ended by saying that I would confirm with a formal offer letter. It was at that moment that he revealed to me that he had an artificial leg. I could leave it there and allow the reader to draw their own conclusions...............
I said that I didn't see that it made any difference , but would he need to be seated most of the day? - if so, we would need to procure the correct seating for him. He assured me that he had no special requirements. His employment with us was good - in fact he was able to bear his disability with good humour. The only occasion on which it was observed to be a problem was when he was attempting to thread a length of wire through the welding equipment. He was tugging at the end quite vigorously, but without success. It was then pointed out by a colleague that he was in fact standing on the free end with his false foot. Of course, he couldn't feel it. He derived as much amusement from the episode as his working colleagues.
He stayed with me for several years, until he decided to return to his former job as a care assistant at a local nursing home.
But why did he deliberately leave the revelation until after securing the employment?
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David Mitchell
Member - 5 posts
Hello James, Very interesting, informative and accurate reply. I cannot argue on any of the points - of course consideration would have been given to any health issues, but thankfully we employ a disciplined points system when assessing candidates, hopefully making decisions on objective bases throughout. We're only a small business, but we try to do things as closely to the book as possible. Things like style, dress and personality can't help but influence the decision-making process, and I agree that if I were applying for a job for which I am more than capable, I would hate to be refused at the first stage because of something minor which doesn't fit "the mould". What aggrieved me was that non-declaration of a serious condition doesn't mean for anything, except another poke in the eye for employers. If insurers can refuse Critical Illness payouts through non-disclosure of, say, a migraine headache thirty-odd years prior to commencement of the policy with impunity, why shouldn't we be able to apply the same fundamentals to employment. If I engaged a welder, only to find that he suffers severe asthma attacks the moment he wore a welding mask, am I expected to make allowances, employ him elsewhere in the factory, or can I point him towards his application form, asking him to show me where he declared his condition? I dread to contemplate the outcome of such a scenario. It's fast approaching the stage where we shall need to ask just about everything possible within the realms of human rights, bordering on the downright nosey - except age, of course. Isn't it strange that we can ask if a job candidate has a criminal record, or a clean driving licence etc., but not their age ??
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David Mitchell
Member - 5 posts
There is no doubt that there is a greater tendency for employees to bring claims against employers, especially following dismissal, no matter the grounds for termination. The advent of "No Win No Fee" lawyers has fuelled this, especially as it brings about a mercenary element on the basis that a barrister can run rings round an employer who was, after all, only trying to run their business. If a firm of lawyers can see even a small chance of "winning", they'll take on the case. The first action an employer must take under these circumstances is to inform his insurers, who will take over from there (that forms part of the insurance package - doesn't it ??). However, the very insurance companies that we engage to look after our interests must shoulder a very large portion of blame and responsibility for the increase in successful claims, as they will "roll over and play dead" at the slightest hint of a claim. It's often cheaper to settle out of court, with no consideration being given to their client. I speak from bitter experience. A disgruntled, "legitimately dismissed" employee decided to file against us for a physical condition which their "No Win No Fee" lawyers claimed fell within the category of RSI. The fact that it probably resulted from previous minor surgery, repeated injections for a semi-arthritic condition and a refusal to attend subsequent physiotherapy sessions played no part in our defence. My insurer's Claims Investigator asked some fairly cursory questions about the situation, saying that our premiums won't be affected, that this sort of claim is only worth a few thousand pounds and went on to say that they'd probably settle anyway, as it's not worth defending. At next renewal, a couple of months later, my premiums had risen by 58% on the basis of a reserved compensation settlement of £23,000 !! Needless to say my insurance business has gone elsewhere. However, even if the claim doesn't go ahead (the ex-employee has indicated a loathing of attending medical examinations, so probably won't turn up when required by my insurers), the existence of a claim - albeit sucessfully defended, or withdrawn - will remain on my insurance history and will affect premiums henceforth. So, resulting from a fraudulant claim based on malicious intent, my business will endure increased operating costs "ad infinitum" and, if successful, a fraudster will pick up a "nice little earner" - less the lawyer's fees of course. One more reason not to employ people...............
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David Mitchell
Member - 5 posts
I engaged a new, male, employee a few weeks ago who, at interview stage, completed a professionally prepared application form. He declared good health at the time, ticking all the "right boxes" and signed the application form which clearly included the statement that false information could result in withdrawal of the "contract" (ie employment). They passed muster on all other criteria for the job, but they've recently revealed that they suffer from a genetically inherited illness akin to Cystic Fibrosis which could lay them low for several weeks, at the drop of a hat. I have made informal enquiries elsewhere, and discover that an attempt to dismiss, despite being on the basis that the employee gave false information, could result in a claim against the company within the terms of the Disability Discrimination Act. Subsequently, I'm lumbered with someone who could quite easily become a liability, cause disruption of job allocation, production planning, disgruntlement of other employees etc. I can readily understand that employees need protection against unscrupulous employers, but I feel that they at times enjoy a disproportionate degree of protection to the disadvantage of reasonable employers. Unfortunately, this doesn't auger well for those genuinely seeking employment. Offering employment to others shouldn't be a "risk business", it should offer a degree of self-satisfaction. Unfortunately, with today's "ambulance-chasing" lawyers, employing others has become a minefield and does nothing to encourage or assist us in decreasing unemployment figures. Unfortunately, I shall think very, very carefully before engaging anyone else, no matter their motives for seeking employment.
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