The Disability Discrimination Act casts OH nurses in a vital advisory role
which, as the HSE recognises, cannot be taken up without government support. By
Linda Delany
Should occupational health professionals help people with disabilities into
employment? Should employees be able to count on access to OH expertise if they
develop a disability?
The answer to both questions is "yes", according to the Health and
Safety Executive, which in August 1998 invited responses to the its document,
Developing an Occupational Health Strategy for Great Britain1. Not only the
prevention of work-related ill-health, but also "rehabilitation through
work" and "helping employers help disabled people into work"
were identified as challenges which such a strategy should be able to meet2.
In the view of the HSE, an OH policy must concern itself with opportunities
for work and with fitness for work.
The aim is to ensure that people who are impaired or disabled are not
unreasonably prevented from taking up job opportunities. And it wants to ensure
that people at work are fit to perform the required tasks; for example, by
adapting work practices for people with conditions such as epilepsy or asthma,
or making sure that people working with compressed air are fit to do so3.
Disability Discrimination Act
The plea for attention to the relationship between work and disability,
seemed timely, given the duties imposed on employers by the Disability
Discrimination Act 1995.
Under the employment sections of the Act, discrimination can take two forms.
One involves an employer treating people less favourably than others because of
their disability, without being able to show that such treatment is justified
(section 5(1)). The other entails an employer failing to comply with his or her
statutory duty to make reasonable adjustments to accommodate the person with a
disability, without being able to justify such failure (section 5(2)).
Accordingly, employers of 15 employees or more4 are prohibited from barring
or dismissing people from employment on grounds of disability, unless
substantial reasons can be shown for doing so. Furthermore, where employers’
arrangements or premises place a disabled person at a substantial disadvantage
to people who have no disabilities, employers must take reasonable steps to
alter the arrangements or premises (section 6(1)).
Floyd5, Clough6, Howard7 and Bruyere8 are among those who have already
explored some of the implications of the Disability Discrimination Act for
occupational health professionals.
One major problem still to be resolved is how to provide employers, job
applicants and employees with comprehensive access to expert assessments of
such matters as people’s fitness for work, the functional demands made by jobs
and the risks in the work environment. Although the Act itself does not require
employers to enlist occupational health expertise, the code of practice for
employment9, which supplements the Act, has this advice at paragraph 3.3:
"The Act does not oblige anyone to get expert advice but it could help
in some circumstances to seek independent advice on the extent of a disabled
person’s capabilities. This might be particularly appropriate where a person is
newly disabled or the effects of someone’s disability become more marked. It
may also help to get advice on what might be done to change premises or working
arrangements, especially if discussions with the disabled person do not lead to
a satisfactory solution."
The code of practice might have added that the drafting of employer
requirements, job specifications and profiles and pre-employment questionnaires
also benefits from occupational health insights into the actual components of
the advertised job, the functional ability needed to perform it and risks
associated with it.
Shortfall in OH provision
It is unfortunate then that comprehensive access to occupational health
expertise was not provided to run alongside the Act. Indeed, the HSE’s discussion
document confirms that "relevant sound advice on occupational health"
in relation to risk assessments, compliance with legal duties, and disability
in the workplace, "is not currently available to all who need it"
(Paragraph 19). There are, however, no government plans to remedy this deficit.
OH professionals will recall that former public health minister Tessa Jowell
ruled out compelling employers to procure occupational health services. But she
encouraged larger businesses to share their good OH practices with smaller
companies and recommended the joint commissioning of occupational health care
by consortia of companies joining together for this specific purpose10.
Not surprisingly, the absence of adequate occupational health advice has
featured in a number of Disability Discrimination Act cases. In Jordan v J H
Haskins & Son (Case No: 1400462/98), the employers were found to have
discriminated because, having discovered that the symptoms of the applicant’s
illness caused operational difficulties, they did not follow the code of
practice by first having a discussion with the applicant about what the real
effects of the disability might be or what might help and, secondly, by making
use of available expertise about the problem.
That employers must do more than seek general medical advice became clear in
the case of Holmes v Whittingham and Porter (Case No: 1802799/97). The
applicant had worked for his employer for 31 years and had epilepsy throughout
that period. His job covered both clerical tasks and work in a drop forge. In
March 1997, Holmes collapsed at work for the first time, and the employer
sought reports on his condition from the GP who acted as "company medical
adviser" and from Holmes’ own GP. On the basis of the pessimistic medical
advice obtained, the employer dismissed the applicant.
The tribunal deplored the inadequacy of Holmes’ risk assessment and took the
view that the employer should have consulted a specialist in occupational
medicine or epilepsy. Advice should have been sought on whether adjustments
would have been viable and whether the employee should have been given a
greater opportunity to bring his epilepsy under control through medication. The
employer’s failure to look further than the GP reports lost it the case.
Need for caution
Three years of tackling discrimination under the Disability Discrimination
Act has shown that the law implicitly relies on access to occupational health
expertise. That access is not yet available.
The case for supporting the initiatives set out by the HSE in its discussion
document therefore seems irrefutable. Securing the rights conferred on people
with disabilities in the employment sphere needs a new occupational health
strategy. The claims of people with disabilities to fair employment
opportunities, should be high on the occupational health agenda, which OH
professionals now have an opportunity to help draw up.
Linda Delany is senior lecturer at Manchester Metropolitan University’s
School of Law
References
1 HSE (1998) Developing an Occupational Health Strategy for Great Britain. .
http://www.open.gov.uk/hse/wdstrat.htm
2 Ibid. Foreword.
3 Ibid. Paragraph 8
4 Small business exemption was created by section 7(1) of the Disability
Discrimination Act 1995.
5 Floyd, M. (1998) Vocational rehabilitation services and the DDA.
Occupational Health Review. 55:32-36.
6 Clough, J. (1997) The Disability Discrimination Act 1995 – an OHP
challenge. Occupational Health. 49(2): 62-63,79.
7 Howard, G. (1996) Disability Discrimination Act 1995: an occupational
health nightmare? Occupational Health. 48(3) 135-138,151.
8 Bruyere, S (1996) Disability Discriminations and the OH nurse.
Occupational Health Review.64 p11-16
9 Department for Education and Employment. (1996) Code of Practice for the
Elimination of Discrimination in the Field of Employment Against Disabled
Persons or Persons Who Have Had a Disability. London. The Stationery Office.
10 Marchant, C. (1998) Public spirit. Occupational Health. 50(5):16,19.
11 Anton, D. (1999) Look Behind the Label. Disability Newsletter.
February.p2
12 Meager N, Doyle B, Evans C, Kersley B,. Williams M, O’Regan S,.and Tackey
N. Institute for Employment Studies Monitoring the Disability Discrimination
Act (DDA) 1995. Research Report RR119. Nottingham. DfEE.
13 Ibid p155.
14 Ibid p244.
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15 Ibid p155.
16 For details of the Commission’s powers, see the Disability Rights
Commission Act 1999.
