employee honesty re health issues

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To Keith Mottershead
Within 6 months of the employee starting work with your company, the company could have asked Access to Work (DWP) to provide up to 100% of the cost for adjustments for the lady. Unfortunately, you can't claim retrospectively.

If employed longer than 12 months and a problem occurs needing adjustments, Access to Work may provide up to 80% of the costs.

You are allowed to ask if there are any adjustments required in order for the person to carry out their role if given the job. Or if they would like to declare any disabilities.
To be covered under the Equality Act for discrimination, the person must have declaired they have a disability or impairment when asked. If they have not, then they can't complain if you haven't put any adjustments in place.

Hi Ken

The following link will give you information on how to get free OH advice over the phone. It's a service paid for by the government and provided by the nhs.

http://www.health4work.nhs.uk/

Good luck.

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Ken

OH will advise you on the capability of the individual, what they can do and what they cannot do. It is up to you to decide whether this meets the job requirement, and if not, whether you can make adjustments. If the person is incapable of doing the job and you cannot make adjustments, then you would be expected to take appropriate capability action.

If there is going to be a substantial delay for recovery, then again it is for you to decide whether waiting this long is reasonable or whether as a business you need to recruit another member of staff. Case law would imply that a small employer might be reasonable in considering termination of contract after around six months, and most employers would consider this after a year. There may need to be some flexibility depending on the circumstances.

OH will not advise you to sack a person. That is a decision for you to make. If the OH advice is that the employee is unlikely to be able to return 'for the foreseeable future' this is generally taken as evidence to support a definitive decision on termination of contract by management.

It sounds as if you need some definitive OH advice on likely prognosis to enable you to make a clear decision.

Tony

This post has been removed because it contravened our guidelines.

This post has been removed because it contravened our guidelines.

Ken

I am always very concerned if someone is off sick after surgery for a period of many months. It is usually possible to make some adjustments to enable them to do some work, particularly if they are employed as a receptionist. GPs frequently sign people off either because they think they want a sick note, or because they do not understand occupational health issues. Statistically once someone has been off work for six months they have over an 80% chance of remaining off work for at least five years and in most cases this is simply because they have lost confidence in their ability to work.

If you believe they should be able to do some work but the GP continues to sign them off sick, I recommend you get an occupational health opinion.

Alan, I am amused by the way you quote the Statute and state with remarkable optimism 'I hope this clarifies the position'. If the law was that clear there would be no need for lawyers.

I am particularly concerned that the legal advice given by another lawyer was that you could only ask what adjustments were needed, and not ask about medical conditions. Most patients I see who are disabled in accordance with the Equality Act criteria do not consider themselves disabled and have never heard of the Equality Act. If you ask them what adjustments they need for a disability, they will say 'none'. In most cases no adjustments are necessary, but in some cases adjustments would make a significant difference, and they would cost the employer little or nothing.

Tony

I am afraid that is not the whole story, as usual the main issues have been excluded see (3) and (7) below: -

S60,
(3)A does not contravene a relevant disability provision merely by asking about B's health; but A's conduct in reliance on information given in response may be a contravention of a relevant disability provision.

(4)Subsection (5) applies if B brings proceedings before an employment tribunal on a complaint that A's conduct in reliance on information given in response to a question about B's health is a contravention of a relevant disability provision.

(5)In the application of section 136 to the proceedings, the particulars of the complaint are to be treated for the purposes of subsection (2) of that section as facts from which the tribunal could decide that A contravened the provision.

(6)This section does not apply to a question that A asks in so far as asking the question is necessary for the purpose of—

(a)establishing whether B will be able to comply with a requirement to undergo an assessment or establishing whether a duty to make reasonable adjustments is or will be imposed on A in relation to B in connection with a requirement to undergo an assessment,

(b)establishing whether B will be able to carry out a function that is intrinsic to the work concerned,

(c)monitoring diversity in the range of persons applying to A for work,

(d)taking action to which section 158 would apply if references in that section to persons who share (or do not share) a protected characteristic were references to disabled persons (or persons who are not disabled) and the reference to the characteristic were a reference to disability, or

(e)if A applies in relation to the work a requirement to have a particular disability, establishing whether B has that disability.

(7)In subsection (6)(b), where A reasonably believes that a duty to make reasonable adjustments would be imposed on A in relation to B in connection with the work, the reference to a function that is intrinsic to the work is to be read as a reference to a function that would be intrinsic to the work once A complied with the duty.

I hope this clarifies the position Your friendly lawyer.

Re: Pre-employment questions about health:

A Barrister advised us about this one recently. Her notes have the starting point, "Section 60 of the Equality Act prohibits the asking of questions about disability or the health of an applicant prior to offering work."

Questions should only be asked if one of the exceptions listed in pages 9-12 of the attached applies: http://www.equalityhumanrights.com/uploaded_files/EqualityAct/employers_recruitment.pdf

Hope this helps.

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As for ken's situation. The employee was employed and performed their role quite satisfactorily for two years. What would have been the point of disclosing the pre-exsisting condition? I am sure not even they were aware what was going to happen 2 years down the road as we are not given the powers of looking into the future!!

If everyone who has a pre-exsisting condition which had no relevance to their employment was forced to disclose it on the assumption that something might happen in the future, a great many people would not retain employment. Things happen to all of us, I am sure this employee is doing their best and is as unhappy about what they are going through as you are but is that a reason to dump them?

From a company point of view I would suggest that perhaps you ask for a medical report so that you can confirm what it seems you already know (your employee is being responsible and keeping you informed). If you really cant afford to go on supporting them and you have shown you have made all reasonable adjustments and there is no possibility of their return within a reasonable period then you can give notice on the grounds of medical incapacity but you have to go through all the stages first. By that time they will probably have returned and you will have alienated them because they will know you have tried to get rid of them........

Sorry if it sounds if I am being judgemental and tetchy but i am loosing patience with companies that dump the genuinely sick who through no fault of their own find themselves out of a job because their bodies have failed them in the middle of an economic crisis! What happened to sympathy? People when they are ill have enough to cope with without having to add the worry of finding after they have fought to get well they are unemployed...enough to cause a relapse!

I agree with Alan but using keith's example it is a great example of an employer who would not have employed that lady had she divulged her back problem at interview.

The question that should be asked is, had she done so would the correct equipment have been supplied so that she could have done her job properly because clearly she was the best candidate for the job or she would not have been employed. If she had told you and you had not employed her that would have been discrimination.

The problem is that in a perfect world disclosure should work. Employees should have no fear in disclosing because it would be used for their advantage and employers would also use the information not only for the employees benefit but also for their own. Unfortunately the reality is that in the majority of cases the opposite is usually the case.

Somebody with a disability who has already been discriminated against is hardly likely to chance it again and cash strapped companies only want the fittest and least problematic employees. That is human nature and no amount of legislation will change it.....unfortunately.

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Human nature is an offensive tool at times. We get it wrong (at times) compensating, giving a positive discrimination. Then there is the darker side of us all where, we simply do not care enough. Given the detail of disability prior to employment, or por sickness record, many of us would judge unfairly by gut feeling.

Often the legal 'splash' of what is right can read badly, positively lacking in 'personality'. Today Mr Blacker, you have made the legal argument read as a moral and emotional strength. If human nature would seriously commit to the legal and moral process as you outlined as is the law. We wouldn't need people like you to uphold decency, dare I say professionalism too from the managers like me and the rest of the gang of postees to these threads. Not taring a brush, I mean for those that fail in duty, rather than us who actually post and talk about these issues.

There is still many a bad company out there that would stab their staff in the back, before respecting their own company values, vision etc... We are lucky if we work for an organisation that makes us feel loved and not just a rusty cog in an old wheel.

For the purposes of employment law (alone) a person with a health issue which lasts more than twelve months, is treated as disabled under employment law (Alone) This is not the s1 definition but the Social Security Regulations Definition which tribunals forget!! I have to remind tribunals of this special rule quite regularly! Your friendly lawyer

I'm sorry I have to argue that the advice being given here is not correct. it is perfectly in order and to be encouraged for an employer to seek information from a prospective employee about disabilities or health issues so that they can make a positive adjustments to the workplace and in an enlightened environment of work such should be considered the norm not the abnormal. An employer who is positive about disability will truly value such information and an employer with a disabled candidate is able to make full use of that information to make the environment a positive place of engagement. What we need are more forthwrite employers asking such questions in a collaborative way and using the information to forge better experiences for the disabled. An employer is perfectly to ask health questions at interview and on the application form fir the purpose of enabling disabled people to engage the selection process more effectively. This works time and time again and there are several examples of such questions being used effectively. Your friendly lawyer.

Just to be clear then - at interview you cannot ask the candidate if they have any health issues that would affect their post or require additional equipment or conditions until you have made the job offer but you can ask the candidate if they have any adjustments that would need to be made to take into account any health issues?
My security company employed a receptionist who having accepted the job offer commenced her duties sitting at a reception desk for 8 hours a day - with breaks. £ months in and out of probation she informed us that she had a serious back problem with steel bars bolted to her spine which requiring ongoing treatment and made it quite clear that the very expensive and fully adjustable reception chairs were not to her liking and she required a 'specialist' orthopaedic one. She couldn't sit for long periods either even with the right chair which I had to buy to accomodate her requirements.
I took some flak over this from my client who had to carry the cost and after arguing with my security company that it was their liability as they employed her not me. Due to time restrictions on having to provide this chair I bought it and my HR dept say it is my liability as I have to provide the 'right' kit for staff in the buildings I manage even if I dont employ the staff directly.
I dont invite comment on the above but would like advice on the things you can ask a candidate at interview.
I find it incredible that you cant ask a candidate if they suffering from any medical condition that would affect their ability to perform the duties/role you will be employing them for at interview stage.
I know there are some out there that would simply not employ based on the answer given and some medical conditions can cause embarrasment to the candidate but if the job as described involves sitting for long periods and you know you will struggle to do so, require additional equipment to perform your duties in any case and also be away from work due to not only requiring ongoing treatment but because the job you've taken is aggravating your condition surely this is something you should divulge or be a legitimate reason to reconsider the offer or ultimately be grounds to terminate the employment if the condition existed before the job was accepted?

My understanding is that you can ask the employee/candidate if they have any adjustments that need to be made to take into account any health issues (non-specific), but only after you have made the decision to employ them.

I am not aware that you can ask them for details of their health, this would be percieved and delving too deep, and invasive. You can remind the employee that if they have a health issue that may affect their work, then they have a duty to declare it.

But that would be as far as you could go. This is of course only my opinion and understanding of the equality act 2010.

Lynn

I spend a lot of time now advising HR departments that we can still ask questions about health once the job offer has been made. Unfortunately their legal advisers are saying that this is 'risky' and they are better not asking any questions, or not until the employer has already started working.

I also see individuals who have been advised by 'disability advisers' and Unions that they don't need to answer any questions about health or disability, and that the simple act of asking questions at any time during employment is discriminatory.

The message we need to get across is that unless the employer knows about medical issues they cannot make adjustments. If there are concerns about confidentiality, then using OH is the way forward.

Unfortunately there is a lot of unhelpful misinformation out there. The latest GMC guidance for doctors is sometimes unhelpful too. We can only release information to the employer with consent, and some employees believe that because they have a right to withold information from the employer they should exercise this right. Doing so is rarely in their best interests.

My concern about Lesley's original post is that she only found out about major issues when the employer was considering terminating the contract. This information needs to be available right at the beginning so adjustments can be put in place before the employee starts.

Tony

I just wanted to address the post from Tony. If it helps - I was a wee bit heartened yesterday to have a lady come through our new declaration of health screening questionnaire process who was very well worth seeing due to a disability. I was beginning to get a bit worried that the new approach to screening "new Starters" now was never going to pick up any employees that we needed to see because our questions have to be so much broader now so as not to be discriminatory that I worry that an employee who doesn't appreciate their needs/or even whether they have a disability would be overlooked. I suspect that some will get overlooked until they are in the workplace and the challenges come to a fore. I can only hope then that the manager will recognise the need for guidance and refer, as opposed to thinking that they just have a difficult employee ....

Lesley

Hello Tony

I accept, on the face of it, it looks difficult for the employer.

But once an offer of employment has been made then all the necessary enquiries can be made. If that employer is mindful, then it is not a scary process to find out what needs to happen, in the workplace, to facilitate their new employees' capability and performance, to the benefit of the business.

Widening the workforce to people who might not otherwise have got the job because of health issues, might actually benefit a business.

When attitudes and behaviours change, then we get the culture change ~ it is difficult but not impossible.

Sometimes, when a problem seems so big and insurmountable, it is easier not to look into solving it at all. With Mindful Employer initiatives we hope to challenge the fear and support the change.

Lynn

As an OHP I would like to know what all the underlying issues are so they can be properly addressed. We used to ask for detailed information at pre-employment, so the employer and their OH team knew all the issues.

The current approach to equality issues takes the opposite view; we are told we should only enquire about issues relevant to the job, and respect an employee's right to privacy and confidentiality. This, of course, will have unintended consequences. Employers will avoid asking too much, so will miss key issues of relevance.

Society cannot have it both ways.

Great posts Lesley and Lynn. I can't comment on the specific issues (only that, as a line manager, I feel the OHP is paid to advise me on the best course of action - and that surely to effectively advise me on my responsibilities and options, you would surely need to dig deep to find out the true facts.

Certainly - I would be upset if my OHP didn't dig deep enough, and further down the line an allegation of disability discrimination surfaced.

Whether or not it is reasonable that you should go beyond the call of duty every time is a question I guess should be answered by your colleagues in the medical profession.

Dear All ~ many thanks for your endorsement of the Mindful Employer ethos. Please do look at www.kentmindfulemployer.net for local initiatives and www.mindfulemployer.net for the national perspective. Dame Carol Black is a supporter of the Mindful Employer ethos.

All the very best to you, Lynn