Any judgement of a person’s ability to do a job must be rigorous but
fair. The proposed framework offers a
consistent and transparent method for assessment, by Siva Murugiah, Greta
Thornbory and Anne Harriss
Assessment of fitness for employment is not a new concept. In fact it has a
long history originating from the times when young men were required to
undertake tests of endurance for their tribal initiation as warriors.
More recently it has taken the form of pre-employment health assessment,
health surveillance, and screening during work. However, assessment of fitness
to or for work according to Battigelli1 has two aspects: "On one side it
presents the functional and anatomical endowment of the subject examined and on
the other, the task to which the individual is operationally fitted".
The recent implementation of the Disability Discrimination Act (1995)
appears to have accelerated the debate on assessment of fitness to work
following a period of illness and the diagnosis of a health deficit.
In O’ Neil v Symm & Co2, one of the first cases brought under the DDA,
the industrial tribunal ruled in favour of the employer. The tribunal
established that the employer has to ensure that an effective assessment of
fitness to work is undertaken, before deciding on the employment status of the
now "disabled" employee.
According to Battigelli1, clinical assessment of fitness to work
"regretfully Éremains all too often inadequately documented, resulting in
failure by the examiner… to match the worker’s endowment to the task or
work".
It is clear that occupational health nurses need to recognise the legal
requirements of employment for the benefit of both employers and employees.
What would be desirable is a framework that would help integrate the many
variables that need to be considered when assessing fitness to work of an
employee diagnosed with a health deficit, or for assessing disabled people for
employment.
This article proposes such a framework, taking into account the intricate
relationship between employers and employees.
It is not the intention to evaluate the current battery of assessment tools
in use, but rather to consider the factors that should be considered when
assessing the fitness of employees returning to work following the diagnosis of
a health deficit. The framework could also be used to help with documenting the
assessment process.
The fitness to work framework
The proposed framework fits in with the two aspects suggested by Battigelli1
and includes the work environment and legal aspects to ensure that the
assessment is comprehensive, equitable and transparent. Assessment of fitness
to work must take into consideration personal aspects, work characteristics,
work environment and legal aspects.
Personal aspects
From a clinical perspective, the whole process of determining fitness is a
series of measurements and, as such, is an exercise in relativity. The extent
of fitness or impairment must be gauged in terms of the demand of the task to
be performed. Assessment of fitness to work in a manual labourer, for example,
will require that the worker’s ability to undertake heavy muscular tasks be
measured. However, this will obviously not be a consideration when assessing
the fitness to work of an office worker.
Assessment must be made for each individual as generalisation of assessment
for fitness to work, based on medical criteria alone, may not stand up in
court.
An individual with Multiple Sclerosis may be able to continue with the same
job for many years after diagnosis before any disability or impairment affects
work performance. Equally, another person with the same diagnosis may require
deployment much earlier because of the rate or progress of the disease.
When assessing each person, past occupational experience, skill levels,
technique and ability have to be taken into account in light of the
medicalhistory.
Clinical assessment may explore basic stamina and physiological endowment3
and examples of methods used are maximal work capacity, oxygen consumption and
aerobic capacity, plus a range of motion and related features or strength
testing.
Besides these, it may be necessary to undertake a battery of tests and to
explore lifestyle that may inadvertently impact on work performance. Disability
applies equally to physical and mental impairment4. The person’s psychological
state should also be assessed. An illness or injury resulting in disability may
well leave psychological scars. Thus, assessment of fitness to work has to
consider the psychological, physical, sociological and intellectual aspects of
health.
Characteristics of the work
Care must be taken that assessment for fitness to work does not become a
mere inventory of anatomical and functional attributes without attempts to
compare the individual to his or her work.
The fitness to work model advocates that the OH nurse needs to have a
thorough knowledge of the job specification in terms of essential and desirable
qualities required for that job.
The extent of fitness or impairment must be weighed in terms of the demand
of the job to be performed, the specific type, intensity (concentration,
strength, vigour), duration (length of time) and schedule (shift patterns,
etc.) plus an understanding of materials and work processes to ensure effective
assessment.
Liaison with human resources and management is essential in establishing the
fitness standards required for specific jobs or areas of work. For certain
occupations such as drivers5,6, offshore workers7 and teachers8, standard
requirements for fitness to work are published in key documents and these need
to be consulted.
Equally, some professional associations provide guidelines for standard
requirements on fitness to work, such as those produced by the Association of
National Health Occupational Physicians for healthcare professionals, the Association
of Local Authority Medical Advisors for fireman and police, and the Joint
Aviation Authority for pilots.
It is also essential that the process of decision-making is adequately
documented1,9, or it may result in failure to display a reasoned match of an
empolyee’s attributes to specific work requirements. The fitness to work model
provides occupational health nurses with a framework to match a person’s
attributes with specific work requirements, as well as a framework for the
documentation of the decision-making process. It therefore aids transparency
and equitability.
For some jobs, there may be a need to test hand-eye co-ordination and the
work-pause sequence may need to be examined in relation to individual abilities
or impairments. The person’s functional capabilities must always be matched to
the operational requirements of the job they are doing. It may be necessary to
take into account the timing of meal breaks, for example, for people who have
health conditions such as diabetes.
The effects, including known side effects, of medication taken by the
employee should also be considered as these may impact on the health and safety
of both the individual and others including co-workers, contractors, visitors,
customers or clients.
The work environment
Able-bodied individuals may previously have worked effectively and
efficiently but after illness or impairment they may become a hazard to
themselves as well as others. Occupational health nurses need to reassess
environmental risks with particular reference to the disabled person’s
abilities.
The temperature of the environment in which the person had previously
worked, for example, may be inappropriate after serious illness. Thermal
comfort is generally a skin temperature of between 32.0C and 35.5C and a core
temperature of between 36.6C and 37.1C. However, these temperatures apply to
able-bodied individuals and may not be suitable for those with compromised
health status.
At temperatures substantially higher than these, optimal levels both
physical and mental performance, may deteriorate due to a complicated interplay
of physiological processes. At temperatures substantially lower, there is a
reduction in neuromuscular function, due to reduced nerve conduction velocity11,
and a reduction in manual dexterity12.
Lighting conditions, noise levels, exposure to chemicals, etc. must also be
taken into consideration. The assessment has to consider the individual’s
abilities and/or deficits in light of the work environment.
Welfare facilities such as toilets and showers or washing facilities in the
work place should be assessed to ensure that the individual is able to
manoeuvre and use them. In certain circumstances facilities must be suitable
for wheelchair access. Equally, access to and from the work site or building
must be assessed and consideration given to evacuation in an emergency such as
fire, as generally lifts cannot be used and wheelchair users and others with
restricted mobility may not be able to use stairs.
Legal aspects
The whole issue of defensible medical rationale is based in the first
instance, on the common law duties of the employer to take reasonable care of
their employees. The duties can be summarised as follows:
– The employer must take reasonable and positive steps to ensure the safety
of his employees in the light of the knowledge that he has, or ought to have
– The employer is entitled to follow current recognised practice unless, in
the light of common sense or new knowledge, this is clearly unsound
– Where there is developing knowledge, the employer must keep reasonably
abreast with it and not be too slow in applying it
– If the employer has greater than average knowledge of the risk, he must
take greater than average precautions
– The employer must weigh up the risk (in terms of the likelihood of injury
and the possible consequences) against the effectiveness of the precautions to
be taken to meet the risk and cost and inconvenience.
Still within the common law position, the employer owes a higher duty of
care to the vulnerable employee with a known pre-existing medical condition.
This is defined as the "egg shell skull" principle as illustrated in
the case Paris v Stepney Borough Council13.
Besides the common law position there are statutory laws such as the
Employment Protection (Consolidated) Act 1978 and therein employer’s liability.
The Health and Safety at Work Regulations (1992), and the Disability
Discrimination Act (1995), to name a few.
Within the Employment Protection (Consolidated) Act employees have been
given protection against unfair dismissal provided they satisfy certain
qualifying conditions. It is beyond the remit of this article to explore each
of the conditions except to say that these also need to be considered in the
assessment.
In Shook v London Borough of Ealing (1986)14 it was ruled that "the
employer must take all reasonable steps to ensure that the alternatives are
explored and the disabled individual is not discriminated against". This
ruling was reached even before the DDA came into force.
The DDA makes it illegal for employers of 15 or more staff to discriminate
without justification against those with a disability as defined by the Act.
The whole concept of disability and to a greater extent, deciding on fitness to
work has to be based on the definition of disability as stated in the Act.
Section 1 of Part 1 of the Act defines a disabled person as someone with
"a physical or mental impairment, which has a substantial and long-term
adverse effect on the person’s ability to carry out normal day-to-day
activities". The Act says that Part 11 (employment) and Part 111 (goods,
facilities, services and premises) also apply in relation to a person who has
had disability as defined in Section 1.
Accordingly, it is advised that occupational health nurses are fully
conversant with the Disability Discrimination (Employment) Regulations 1996.
Further information and a variety of useful publications can be obtained from
the Disability Rights Commission16.
This legal position has given a greater impetus to the need for assessment
of fitness to work. It also brings into focus the need for health alliances
between the occupational health service, general practitioners, hospital
consultants and employers.
Occupational health practitioners, including nurses, need to be aware that
industrial tribunals have made it clear that conflicting medical opinions on
fitness to work would be ruled in favour of occupational health
practitioners17. This implies that employers are entitled to rely on the views
of the OH practitioner. Therefore assessment of fitness to work must be a
defensible position.
The fit to work framework thus proposes that the four variables mentioned
above are considered in assessment of fitness to work. It is also envisaged
that OH nurses use their professional knowledge and skills to ensure that the
assessment is rigorous but equitable. Using the fitness to work framework
enables a consistent and transparent method of assessment, decision-making and
documentation.
References
1. Battigelli MC (1994) Determination of Fitness to Work. In Zenz C,
Dickinson OB, & Horvath EP (eds) Occupational Medicine, 65-69, 3rd ed. St.
Louis:CVMosby.
2. O’Neil v Symm & Co. [1998] Disability Discrimination. Health Law. May
1998 p 7; Reading Industrial Tribunal.
3. Magaria R (1979) Biomechanics and Energy of Muscular Exercise. Oxford:
Clarendon Press.
4. Department for Education and Employment (1996) Disability Discrimination
Act 1995: Code of Practice for the eliminationof discrimination in the field of
employment against disabled persons or persons whohave had a disability.
London: HMSO.
5. Medical Advisory Branch (1996) At a Glance Guide to Current Medical
Standards of Fitness to Drive. Swansea: DVLA.
6. Taylor JF (1995) Medical Aspects of Fitness to Drive, a Guide for Medical
Practitioners. 5th ed. London: Medical Commission on Accident Prevention.
7. UK Off shore Operators Association (1992) Medical Aspects of Fitness for
Offshore Work. A Guide for Examining Physicians. London: UK Off shore Operators
Association.
8. Department for Education (1993) The Physical and Mental Fitness to Teach
of Teachers and of Entrants to Initial Teacher Training. (Circular No. 13/93).
London: Department for Education.
9. UKCC (1998) Guidelines for Records and Record Keeping. London: UKCC
10. Precht et al (1973)Temperature and Life. Berlin: Springer-Verlag.
11. Vangaard L (1975) Physiological reactions to wet-cold. Aviation Space
and Environmental Medicine, 46, 33.
12. Wyon, et al (1979) The effects of moderate heat stress on mental
performance. Scandinavian Journal of Work Environment Health, 5, 352.
13. Paris v Stepney Borough Council [1951] All ER 42.
14. Shook v London Borough of Ealing [1986] IRLA 46; All ER.
15. Department for Education and Employment (1996) Disability Discrimination
Act 1995: Guidance on matters to be taken into account in determining questions
related to the definition of disability. London: HMSO.
16. Disability Rights Commission. www.drc-gb.org
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17. Ford Motor Company v Nawaz [1987] IRLR 163.
Siva Murugiah is Senior Lecturer in Life Sciences, RCN Development
Centre, South Bank University. Greta Thornbory is a Consultant in Occupational
Health, and Anne Harriss is Programme Director,Occupational Health Nursing, RCN
Development Centre, South Bank University
