Comments by Andrew Graham-Cumming

Andrew Graham-Cumming
Member - 10 posts

Sonia
"I am now sorting stocks of ...". No call centre should be without stocks - voice tubes and ear muff covers should be changed periodically as a matter of routine. That's why manufacturers now sell colour-coded voice tubes, so that managers can see immediately if company hygiene policy is being followed.

Andrew Graham-Cumming
Member - 10 posts

Carole
If the candidate had an impairment that was likely to satisfy an ET that the DDA applied, then the refusal to allow the special keyboard in the test would appear to be direct discrimination on grounds of disability. You say that the candidate informed the potential employer of the disability, so the effect of that disability on the test should have been taken into account.

The reported comment by HR might be seen to demonstrate underlying prejudice, but it might also have been common sense. There's no point applying to be a fireman if you are a very short-sighted epileptic and there's no sense in wanting to work in a call centre if you can only use a computer by direct voice input.

Andrew Graham-Cumming
Member - 10 posts

It would seem reasonable for you to ask HR if they have considered obtaining occupational health advice. Without that advice they seem unlikely to develop an understanding of the potential impact of your health condition on your work or of your work on your health. They also need to consider possible issues of disability discrimination. It is difficult to see how the Company can ensure that you are being treated fairly without taking such advice. There may well be scope for adjustments in your pattern of work that could overcome the problems that have arisen.

Andrew Graham-Cumming
Member - 10 posts

David

Your HR consultants advised you to write to the GP for occupational health advice. You didn't get any. Don't blame the GP for asking for a reasonable fee for spending his time replying to your letter. Blame your HR consultant for advising you to seek advice from somebody who does not have the necessary competences to give you the advice you need. If you want OH advice go to an OH specialist, not a GP. Would you ask your GP to repair a hernia or replace a hip joint? It is not the GP's role to 'play ball' with an employer. His duty of care in law is wholly to the patient. If you ask for information with the patient's consent, he can give it to you, but don't expect him to give you an opinion outside his field of competence. However, I agree with you that a GP should not criticise the employer or be rude - the GP has a one-sided view since his information usually comes solely from the patient. Incidentally, I also find it depressing that the HR consultant's initial advice was 'write to the GP' and not 'talk to the employee'.

I don't understand your point about managers and directors. You are 'management', and you do not have the necessary knowledge to interpret the answers to the questions you ask candidates. What is the point in asking somebody to state what medical condition they have and what medication they are taking? What will you do with that information?

The questions in themselves are pointless. It is entirely possible that somebody with a long-standing medical condition could consider him/herself to be in good general health, and might not be receiving any medical treatment at the time of completing the questionnaire. For example, a manic depressive or schizophrenic in remission, a diabetic controlled by diet alone, somebody with cystic fibrosis who is free of significant symptoms at present. Indeed, your original complaint may be wholly unjustified, because he could have completed the form as you say he did without lying.

You have been sent by your HR consultant down a route with a substantial cost in your time, anger and blood pressure. I suggest that the learning point is not that people can lie on pre-employment questionnaires, but that employers should seek advice from those most competent to provide it.

Andrew Graham-Cumming
Member - 10 posts

Interesting

I am an occupational physician, and this issue of concealed past sickness is one with which I am very familiar. An obvious question is, why were you asking for a health declaration on an application form that was going to a manager and not in confidence to an occupational health adviser? That seems to me an inappropriate use of sensitive personal data since you, as a manager have no relevant competence to assess the significance of medical information.

Taking up some other points, there is no guarantee that an OH service would pick up an illness if the candidate chose to conceal it. The OH service does not provide a police function, but exists to advise on the impact of underlying medical conditions on fitness for work and a need for adjustment or support in the workplace. In this context, I would not expect the OH service to tell the employer that the man had CF, unless he wanted the serviced to do so. Indeed, a doctor who did tell would be in breach of both the Data Protection Act and the GMC's guidance on medical confidentiality. I would expect the OH service to identify any substantial health risk that might arise because of the specific nature of the employment, and if one was present to offer advice to the candidate and the employer on the advisability or otherwise of the intended employment.

There is most definitely an excuse for dishonesty in this case. The man has been asked to reveal information to somebody unqualified to make use of it. He could reasonably expect a declaration of his CF to result in discrimination, as is clear from several of the responses in this thread. I don't condone his concealment, but I understand it.

As a final thought, most pre-employment health questionnaires are completely worthless. The vast majority of people are perfectly capable, from a medical perspective, of doing whatever job they want to do. The question to ask is not 'have you a disease?' but 'have you any form of impairment or disability that might affect your ability to do this job, because we would like to help you if you do?' There are a few occupations requiring certain physical capabilities which need a medical assessment, but even there the old standards have been shown in many cases to be over restrictive - we have a few insulin-dependent diabetics driving police response vehicles, and stable epileptic firemen.

If you are an employer you would be far better off scrapping pre-employment health screening, introduce a system to identify those who need support in the workplace by using a positive questionnaire, and use the savings to improve the management of sickness absence through early intervention for such issues as psychosocial stressors and bullying.

Andrew Graham-Cumming
Member - 10 posts

Bharat,
Please understand that the decision to terminate and the award of an ill-health retirement pension are two completely separate matters. I have seen employers (particularly in local government) repeatedly tie themselves in knots by failing to appreciate this point.

Eligibility for medical retirement varies considerably from scheme to scheme. Some pension schemes have no facility for early payment, others allow early payment when the incapacity is likely to be permanent, others have more liberal rules. Thus, your employee's situation may well merit termination because of her inability to undertake her contracted duties, but she may not be eligible for early payment of pension benefits. If her medical treatment is incomplete and expected to result in eventual recovery then she is clearly not likely to be permanently incapable of her normal duties and very few pension schemes would allow early payment of pension benefits.

Andrew Graham-Cumming
Member - 10 posts

I am an occupational physician. As a doctor I cannot tell you that the Act does or does not apply - see http://www.employmentappeals.gov.uk/ and search in judgements for EAT/1297/98. However, advising on potential adjustments is very much a routine aspect of my work. It is for the employer then to decide if the adjustments are practicable and reasonable. The Act is not a blank cheque for the disabled, its employment provisions are there to help disabled people remain at work. If a disabled person is on long-term sickness absence, and there are no practicable adjustments enabling them to be back at work, then he or she is an employee on long-term absence and should be dealt with in accordance with normal company policy. I suspect that most employees would think it perfectly reasonable to dismiss somebody who has been absent for 4 years. It would be wise to get OH advice before doing so, but do ask specific questions - in particular, "is there any adjustment we can make to get this employee back to work and if so, in what timescale?"

Andrew Graham-Cumming
Member - 10 posts

I am an occupational physician. A GP's F Med 3 certificate is actually no more than a certificate of entitlement to statutory benefits. If you read it you will see that it says "I advise you that ...". It does not say "you are unfit". If you have medical advice provided by a qualified occupational physician - ie a specialist who is registered as such in the Medical register - you can reasonably assume that he or she has a greater level of competence to assess fitness for work than any other medical practitioner - GP or hospital specialist.

If the anonymous dustcart driver's description of his circumstances is accurate then his employer could be skating on very thin ice. No OH adviser can "overrule" a GP, since the GP is a medical practitioner and the OH adviser is a nurse. On the other hand, if anonymous is so concerned about his fitness to drive a 26 tonne vehicle, why has he not reported his medical condition to DVLA as he is required to do by law? If DVLA decides to suspend his licence his employer will have some fairly clear evidence that he is deemed temporarily unfit for his normal duties! (I do realise his posting was 2 years ago, but the point is still valid)

To Marc Wilson, I have to point out that it is conceivable that the medical situation has changed between the time the Company's OH doctor saw the employee and the day his GP gave him another F Med 3. Yes, your Company doctor can disagree with the GP's certificate, but he might want to find out what has changed first.

Andrew Graham-Cumming
Member - 10 posts

For goodness sake! The registration number is publicly accessible data referring to a thing, not a person. Every time the car drives along the road its numberplate is seen by thousands of people and recorded by hundreds of cameras. It is not personal data.