Discrimination in the dock

Is it fair to prevent people with diabetes from driving at work when they
may be as fit to do so as the next man? It is all too easy to simply apply a
blanket ban to specified medical conditions, rather than spend time and money
carrying out regular medical assessments to determine an individual’s fitness
to drive, by Tim Hoy

Setting, maintaining and assessing medical standards for employees are just
some of the many responsibilities the majority of occupational health
practitioners face.

When an organisation has employees working in potentially hazardous jobs, it
is vital that its medical standards address the need for a safe system of work.
Historically, the most common way of doing this has been the application of
blanket bans on anyone with a specified medical condition who may wish to
drive, work at heights, use firearms, work offshore or engage in work that
involves potential hazards.

Diabetes discrimination in employment has become the topic I have championed
since 1989. During that time I have won 103 cases and lost just five. There are
several other medical conditions that attract similar blanket bans, most of
which could be judged in a more scientific way if a qualitative clinical
assessment was made. The problem with the current approach is that personnel
officers, who do not have the requisite specialist medical knowledge and
qualifications to make fully informed decisions, may apply it in either the
selection or dismissal process.

However, with the exemptions to the Disability Discrimination Act to police,
prison officers and firefighters set to be lifted in October 2004, another host
of careers will benefit from the protection of the law.

Despite my profile as a diabetes and disability rights campaigner, my first
priority is always for the provision of a safe system of work, over and above
my concern for the rights of people with diabetes. Many of the regulations I
have been impassioned about challenging have been in the area of driving.

‘Safety first’ is repeatedly cited as the reason for the rigid adherence to
these blanket bans. However, when one starts to scratch the surface, the
assertion that they are in the name of safety doesn’t stand up to scrutiny.
Blanket bans are there because they are cheap and easy to apply, although this
so-called ‘cost-effectiveness’ is little consolation to people who may have
just lost their livelihood.

When I hear government ministers, politicians, policymakers and civil
servants state that these arbitrary and punitive bans are there to ensure the
UK maintains the highest possible standards of road safety, I am amazed they
can keep a straight face. There is, of course, a valid rationale for wanting
these vehicles to be driven safely and I would never support the retention of a
licence for someone whose medical condition was not adequately controlled.

To be of any value, the process of risk assessment needs the specific risk
to be quantified and clearly specified. The current blanket bans rely on a
perceived risk and therefore are based on unreferenced assumptions. All manner
of medical conditions can cause complications or problems that would make
someone unfit to drive, but rarely are the problems automatic, or a foregone
conclusion.

DVLA rules

The Driver and Vehicle Licensing Agency (DVLA) categorises vehicles into
group I and group II. Group I applies to the private light goods vehicles (cars
and motorcycles). Group II now comprises vehicles that have more than nine
seats or weigh more than 3.5 tonnes.

David (his name has been changed) has been allowed to continue driving these
smaller group II vehicles because ‘grandfather rights’1 afforded him an
automatic right to do so after the EU added the vehicle categories C1 and D12.

David has twice lost his job due to his unsafe driving. He has penalty
points on his licence although he has never been banned. His declining visual
acuity is nearing the point where he will not be able to retain a basic car
licence. The nonsense is that this information, which is entirely relevant to
public and road safety, is apparently of no interest to the DVLA or David’s
employers.

No rights for the diabetic

In contrast, when my licence needed to be renewed, the C1 and D1 categories
were removed automatically because I have insulin-treated diabetes. No
‘grandfather rights’ for the ‘dodgy old diabetic’. This is despite the fact
that I have a visual acuity of 6/4 in both eyes, have six- monthly diabetes
check-ups that indicate tightly controlled glycaemic management and I have an
accident-free driving record.

The fact that after my diagnosis I had been allowed to drive these vehicles
until I renewed my licence after the changes, meant that for a period of more
than five years, I was permitted to continue driving these larger vehicles,
regardless of whether I was safe or not.

After months of campaigning, people with insulin-treated diabetes can now be
considered for a C1 licence, subject to passing an annual clinical assessment.

There is another idiosyncrasy within the UK’s disparate rules that have
caused a number of people to lose their jobs. When a Group I vehicle is used
other than for the category referred to as social, domestic and pleasure,
employers occasionally apply the medical standards for Group II vehicles.

In about a third of the local authority taxi licensing offices in the UK,
for example, the Group II medical standard is applied to taxi drivers on
insulin – i.e. they are automatically banned from driving for hire and reward.

The appeal cases I have been involved with have concerned drivers of these
Hackney cabs, ambulances, police cars and Port Authority vehicles. Despite
these not being Group II vehicles by size or passenger capacity, the employers
have applied the diabetes medical standard for their employees using insulin,
because the alternative would be a medical assessment.

Even when these additional tests are in place, such as the Police Service’s
advanced driver training and the Fire and Ambulance Services’ internal tests,
the vehicles used for response driving are not fitted with tachographs, which
is a European safety requirement for Group II vehicles. So, as well as having a
poor medical history, our friend ‘David’ has no limitations placed on his hours
of work. Again, my assumption is that it costs money to fit and monitor
tachographs, so they are avoided.

Exemptions from the Road Traffic Act that allow emergency service response
drivers to exceed the speed limit and to treat red traffic lights as a give way
sign clearly need to be balanced by employing drivers who are safe.

But, under these somewhat less-than-scientific rules, a driver who uses the
maximum dose of sulphonylureas, whose diabetes remained undiagnosed for a
decade before discovery, whose father died of myocardial infarction at the age
of 38, smokes 30 cigarettes a day and has excessively high lipid levels, could
(under the rules) be considered more employable as a driver of certain
vehicles, than for example, Steve Redgrave, Gary Mabbutt or me.

Attempts to try to justify the disparity of rules between those drivers who
use insulin and those who do not are not backed up with any actuarial data from
the insurance companies. The assumption remains that using insulin equates with
unsafe driving. In fact, statistically, the opposite is the case. As a
42-year-old person with insulin-treated diabetes, I am substantially less
likely to cause an injurious road traffic accident than non-diabetic males
under 25 years of age.

While insurance premiums are significantly higher for this group of young
men, they are not subjected to any blanket bans in the name of road safety as
such a draconian action would apparently contravene their civil liberties.

But when any of us is diagnosed with this manageable condition, we are
automatically deprived of the civil liberties that a less-safe group of people
can take for granted. I refuse to allow such stereotyping dogma to continue
unchecked.

Lack of clear answers

In researching the legal position on Group II vehicles for this article, I
contacted the DVLA and numerous other government departments for a statement on
the status quo. Depending on what day of the week I telephoned and to whom I
spoke, the answers varied from call to call. Each time I attempted to get a
definitive response, I would be diverted from one government department to
another, each one stating in turn that it wasn’t their responsibility.

If the DVLA can’t even offer a simple response on the requirement of
tachographs, for instance, then what hope is there for an OH physician trying
to get a coherent policy statement from them?

The Department of Health has stated there are no blanket driving bans
against ambulance workers and paramedics3. The UK Fire Service applies the
right of individualised assessments for their employees with diabetes. I hasten
to add that these are the most stringent rules in existence and have been
endorsed by a number of authoritative bodies4.

The most disabling thing about my diabetes remains the attitude of others
towards it. Thankfully, OH physicians around the UK are becoming more focused
on the need to assess, rather than automatically discard employees.

Unless the rules are changed to outlaw automatically proscribed functions
for people with diabetes, then employees will be sacked for their honesty, or
will choose to conceal their diagnosis. The latter option, although frequently
chosen, does no favours for those of us who truly seek a safe set of rules to
work by.

Tim Hoy is a station officer and UK secretary, International Register of
Firefighters with Diabetes

Footnotes

1. Grandfather rights allow someone who has already been driving a certain
class of vehicle (before changes are made to the criteria) to continue doing
so. All new applicants for the licence, must pass the more stringent rules.

2. C1 = medium-sized vans 3.5 tonnes to 7.5 tonnes. D1 = minibuses between 9
and 17 seats.

3 Health Minister John Hutton (2002) Hansard 14 March 2002 column 1245W.

4 The Royal College of Physicians, WHO, Juvenile Diabetes Federation
(Europe) and Diabetes UK’s Professional Advisory Group. The Faculty of Occupational
Medicine (FOM) ratified a similar set of rules.

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