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Good health – fair question?

14 Sep 15

In light of revelations at the Glasgow bin lorry inquiry, the authors consider how employers can legally enquire into a job applicant's or employee's medical condition

by Gillian Cumming, Emma Grossmith

The fatal accident inquiry into the tragic bin lorry crash that killed six people in Glasgow last year has been much in the news of late.

Much of the evidence at the inquiry has focused on the driver’s medical history, and cross examination of key witnesses has made the clear accusation that had the employer made sufficient and robust enquiries into the driver’s health declaration at the recruitment stage, he would not have been hired.

It will be for others to determine whether serious mistakes were indeed made by the employer in the recruitment and management of the driver, but it will have been immediately obvious to employment lawyers and HR professionals that what has been missing from much of the media reporting of the case is the fact that equality laws do place some limits on the ability of an employer to make recruitment and management decisions on health grounds.

Often, pertinent questions are not asked of prospective employees by employers because the employer is unsure of just how far they can go in exploring their candidate’s medical history. The same difficulty can arise when employers are managing health problems of employees during the course of their employment.

The case amply demonstrates the importance for employers of ensuring that their staff are fit to work. To that end, employers need to be confident that they can ask appropriate questions without offending employment legislation.

During recruitment

Under s 60 of the Equality Act 2010, employers are not generally permitted to ask job applicants questions about their health before making a recruitment decision. Unfortunately, even if the right questions are asked, not every applicant or employee will tell the whole truth. How then can employers protect themselves and give themselves the best chance of avoiding the tragic circumstances of this case?

Section 60 does allow employers to ask job applicants about their health where the questions are necessary to establish whether the person will be able to carry out a function which is “intrinsic” to the work. When hiring for a driving job therefore, it would be appropriate to ask applicants questions relating specifically to their ability to drive a vehicle, since driving will be intrinsic to the job. For example, applicants could be asked to confirm whether they have any disability or health condition which affects their ability to drive. Whilst there can never be a guarantee that the question will be answered honestly, addressing this issue at an early stage will help protect the employer and will make it clear to the applicant that driving is a key function of the post.

Section 60 also permits employers to ask health questions where they are at the stage of making a job offer to a particular individual or where that person has been shortlisted for a vacancy. At this stage, employers can and should make any job offer conditional on the applicant passing appropriate health checks and on the accuracy of any information they provide during such checks. The extent of the checks required will vary depending on the type of role, and the more safety-critical the role is, the more checks it will be reasonable to carry out.

Legitimate actions

There should be no “one size fits all” recruitment process. Whilst in some cases it may be sufficient to ask the applicant to complete a health questionnaire, where an individual is being hired for a safety-critical role an employer might consider that this is not enough. They could therefore made any offer strictly conditional on the outcome of an occupational health assessment and/or a review of the individual’s medical records. Accessing the applicant’s medical records or reviewing a medical report into their condition would require the employee’s consent under the Access to Medical Reports Act 1988, but an employer would normally have reasonable grounds for rejecting an applicant for a safety-critical role who was unwilling to give such consent.

To focus their minds when completing questionnaires or attending medical assessments, applicants can also be asked to sign a declaration confirming that any answers given in any questionnaire or health assessment are honest to the best of their knowledge and belief and that they understand that if the answers are false, it could lead to their dismissal and potentially also criminal or civil sanctions.

Of course, the more thorough the health assessment process, the more medical information the employer will end up holding. That medical information will be sensitive personal data under the Data Protection Act 1998 and the employer will have to be able to satisfy an appropriate condition to process it. The easiest way to do this is to obtain the individual’s clear and freely given consent during the application process. This is likely to be fairly easily done at the recruitment stage. The employer must then also ensure that the information obtained is processed and stored appropriately and kept for no longer than necessary. It may well be appropriate to keep medical information with the applicant’s consent if they are successful in their application and are taken on as an employee, but if they are not, the employer will have to judge how long it is necessary to keep that information for, after the recruitment process is complete. For example, it may not be appropriate to keep such information for longer than six months after the end of the process.

Assessment issues

Under the Equality Act 2010, all information that the employer receives about the employee’s health must be dealt with fairly, and the employer must not unlawfully discriminate against a disabled applicant or employee. If the information disclosed reveals that the applicant may have a disability, the employer will have a duty to consider, and where appropriate make, reasonable adjustments to the job or working environment to eliminate any disadvantage the applicant faces because of their disability. That means that if something potentially undesirable is revealed by the health assessment process, the application cannot simply be rejected, but must be given particularly careful consideration.

There is a genuine conundrum for an employer to resolve here. Making an appointment where there are residual doubts over an employee’s health carries risk, particularly in a safety-critical environment. But rejecting an applicant in such circumstances will often carry the equally obvious risk of a disability discrimination claim being brought, and while an objective justification defence may be available in some cases, the burden of proof in establishing that defence rests firmly on the employer.

However, disability discrimination laws can be complied with, while ensuring that applicants and employees are fit enough to carry out the essential elements of the job, if appropriate health questions are asked and appropriate health checks are carried out, at the correct stages of the recruitment cycle.

During employment

Once the individual starts work, the employer has an ongoing duty to the employee, and to others, to ensure the employee remains fit for the job they are employed to do and to consider reasonable adjustments for disabled employees. Therefore, employers should consider asking any employees in safety critical roles to undergo reasonably frequent health assessments. It might well be appropriate to ask such employees to see an occupational health specialist yearly and/or after a period of ill health. As part of this process, the employer or occupational health specialist may again want to have access to the employee’s medical records, so it would be wise to ensure that the employee’s contract of employment contains a requirement to consent to such medical assessments or enquiries.

If circumstances arise which mean that the employee is no longer fit for their job, the employer will have to consider whether there are any other roles the employee might be fit and able to do, particularly if the employee’s condition amounts to a disability under the Equality Act. If no adjustments can be made and no alternative role can be found, the employer may have no option but to dismiss the individual because of their incapability.

If an employer finds out that one of its staff has given inaccurate health information, or if an existing employee simply refuses to co-operate with an employer’s enquiries about their health, such conduct could be investigated and potentially dealt with under the employer’s disciplinary procedures. Depending on the circumstances, the employer might need to suspend the employee from work for their own safety and the safety of others. Deliberately lying or misleading an employer would almost always amount to gross misconduct, entitling the employer to dismiss the employee without notice.

Overall, a lesson that all employers can learn, regardless of the causes of this particular tragedy, is that it is vital to be actively engaged in identifying what the minimum health and/or fitness requirements ought to be for any particular job. Occupational health specialists can assist a great deal in this regard, but ultimately employers are responsible for ensuring that their workforce can carry out their duties safely.

Gillian Cumming and Emma Grossmith are senior solicitors with Just Employment Law Ltd, Glasgow


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