09 October 2015 #Employment
The Glasgow bin lorry crash has raised some serious questions about the medical information that should be provided by individuals applying for a new job.
An employer is prohibited from asking a job applicant questions on their health before making them a job offer. There are some limited exceptions to this rule including where the information is necessary to ensure that the applicant will be able to carry out the functions which are intrinsic to their work. Where an employee’s role involves driving a commercial vehicle in public areas it would seem justified for an employer to ask such questions in so far as this may impact on the individual’s ability to drive the vehicle safely.
Subject to the above, an employer may also request a medical report on the employee from their GP or another medical adviser. However, there are statutory rules governing such requests and, in particular, the individual needs to consent to the report being prepared and disclosed and has the right to see (and request amendments to) the report before it goes to the employer.
What happens if an employee fails to disclose relevant health information?
If the employee has lied on their application then an employer may be able to dismiss them fairly although it will be helpful if the employer’s policies or contracts clearly state that failure to disclose medical information as requested may result in dismissal. To avoid claims for disability discrimination the employer would need to show that any such dismissal was not because of the employee’s health and that it would have treated any employee who lied on their application in the same way. In practice this may put the employer in a difficult position given the tendency for job applicants to embellish their CVs.
If the employer did not request information and the employee has simply failed to volunteer information of a medical condition which may impact their work then this may lead to a fair dismissal. The employer would need to be able to show that the employee is no longer capable of carrying out their work and would need to follow a fair process which would include considering reasonable adjustments and looking for alternative roles/duties. The employer should ensure it has evidence to support its view and clearly documents its reasoning as it will need to justify its treatment of the employee to defend a disability discrimination claim. Obviously, where disastrous consequences ensue it will not be difficult to show that the employee’s work will be impacted and the seriousness of the incident alone may, in certain circumstances, justify a dismissal.
To stay on the right side of the law, employers should ensure that any questions they ask job applicants are clearly structured and necessary in respect of the fundamental aspects of the role being carried out. Employers would be wise to include in their policies and contracts of employment that providing false information or failing to disclose health information which impacts on the employee’s role may result in dismissal. The prohibition on asking questions in recruitment only applies before a job offer is made and so it will not apply when an employer has made an offer, even if that offer is conditional upon medical information being supplied. Therefore employers may prefer to make conditional job offers and then seek information on the individual’s health. However, an employer would need to be careful about how it acts on receipt of such information and, if withdrawing an offer, if will need to be able to justify its actions to defend a disability discrimination claim.