Two
recent disability discrimination cases have caused confusion surrounding the OH
role in assessing staff symptoms, in particular over which definition to follow
when diagnosing disability. By Ceri
Haines-Nutt
The
Employment Appeal Tribunal’s (EAT) decision in Vicary v British
Telecommunications ([1999] IRLR 680) was examined earlier in the year (Occupational Health, January).
The upshot of that case was that medical experts giving evidence in disability
discrimination cases should not apply the legal definition of disability, found
in the Disability Discrimination Act 1995 (DDA), to an individual when giving
evidence in the employment tribunal. Â
In
December last year, however, the EAT decided in HJ Heinz & Co v Kenrick
([2000] IRLR 44) that Heinz, through its medical adviser, had knowledge of
Kenrick’s disability even though his condition had not been diagnosed.
So,
should occupational health advisers (OHAs) be deciding whether an employee is
disabled as defined by the DDA or not?
The
first question an employment tribunal will ask in any disability case is
whether an applicant is disabled. The DDA defines disability as "a
physical or mental impairment which has a substantial and long-term adverse
effect on a person’s ability to carry out normal day-to-day activities".
This definition, which was designed to relate to a common-sense notion of
disability, should be considered in relation to an individual by asking five
questions:
1.
Does the employee have a physical or mental impairment?
Whether
an individual is suffering from a physical impairment is unlikely to cause
problems for the OHA. Employment tribunals have taken a very broad approach to this, generally finding that physical
impairments fall within the remit of the DDA. However, great difficulty can lie
in identifying a mental impairment. If in doubt about whether an individual has
is a mental impairment, the employment tribunal will look to the World Health
Organisation’s International Classification of Diseases for Guidance. Where
there is doubt, this too must be the OHA’s starting point.
2.
Does the impairment effect the employee’s ability to carry out normal day to
day activities?
When
considering the impact of the impairment on an individual’s ability to carry
out day-to-day activities one of the following aspects must be affected;
mobility; manual dexterity; physical coordination; continence; ability to lift,
carry or otherwise move everyday objects; speech, hearing or eyesight; memory
or ability to concentrate, learn or understand; and the perception of the risk
of physical danger.
3.
Does the impairment have an adverse effect on a person’s ability to carry out
day-to-day activities?
Whether
the impairment has an adverse effect is simple. It will either have an adverse
effect or not. In considering this OHAs should be focusing on the things that
an individual cannot do, or can only do with difficulty, rather than on things
the individual can do.
4.
Is the adverse effect substantial?
The
word substantial means more than minor or trivial. When determining whether an
adverse effect is substantial it is important to consider the effects which
will have been present but for the individual receiving medical treatment.
Employment
tribunals have called this the "deduced effects" ([1999] IRLR 4 –
Goodwin v The Patent Office). It is necessary to consider both of the effects
and the "deduced effects" on someone’s ability to carry out normal
day-to-day activities when considering whether or not the effects are
substantial. This will also mean
considering the alleviation of the impact of someone’s impairment as a result
of having prosthesis or other aid.Â
Perhaps readers will be surprised to note that when considering a mental
impairment counselling sessions have been held to constitute medical treatment
([2000] IRLR 14 – Kapadia v London Borough of Lambeth).
In
Kapadia v London Borough of Lambeth it was found by the EAT that an employment
tribunal had erred in law by not considering how the effects of an individual’s
depression had been alleviated through counselling.
5.
Is the adverse effect long term?
If
the adverse effect is long term the effect will have lasted, or will be
expected to last, for at least 12 months or for the rest of the life of the
person affected. The latter may have
particular an application for an employee with a terminal illness who has been
diagnosed with less than a year to live.
In
determining whether or not the impairment is likely to have a long-term effect,
recurring conditions are treated as continuing and thus potentially long term
even if there are periods when the individual suffers little or no effect. This
means that if an OHA assesses an individual and determines that their
impairment has ceased to have an effect on their day-to-day activity, that
person may still be disabled for the purposes of the DDA if the effect of the
impairment recurs between the time the OHA sees the individual and the
beginning of any tribunal hearing.
Where
does this leave you?
Whether
or not the person you are seeing suffers from a disability is one of the first
points you should be addressing if an individual is referred by an employer for
an opinion. Since the decision in Heinz this is all the more important.
In
the Heinz case the tribunal was asked whether an employer can discriminate
against an employee on grounds of their disability when it has no knowledge of
the employee’s disability. The facts of Heinz were that Kenrick, who had been
employed by Heinz since 1979, became ill in May 1996 and was off work from that
time.
Kenrick’s
condition was never satisfactorily identified, although he consulted doctors
and told the company’s medical adviser that he thought he had chronic fatigue
syndrome. Kenrick was dismissed in April 1997 despite his request that his
employer should not make any decision until he had seen an immunologist. After
his dismissal Kenrick saw the immunologist and the diagnosis of chronic fatigue
syndrome was confirmed.
Kenrick
brought a claim under the DDA. Heinz argued that, at the time of Kenrick’s
dismissal, it was not aware that he had a disability and therefore could not
have discriminated on the basis of that disability. The tribunal held that
Kenrick had made Heinz aware of his symptoms through its medical adviser and
that Heinz had knowledge of the disability at the time the decision was taken.
On
appeal the EAT went further, holding that there was no requirement that the
employer needed actual knowledge of the disability and that discrimination can
arise where a person is treated less favourably because of the way a disability
manifests itself even if no label has been put on the condition. Heinz has two
important implications for OHAs. First, Heinz means that employers will have
great difficulty in denying that they were aware of a disability if an OHA is
aware of the disability or its symptoms.
It
is therefore incumbent upon employers that when they have any suspicion that an
employee may be disabled to seek a medical assessment of that individual. Heinz
may therefore mean more referrals. Second, it is absolutely vital that
following an examination an OHA expressly relates the symptoms diagnosed and
the prognosis to the employer. Furthermore when advising employers about
appropriate courses of action, an OHA should pause to consider whether the
reasons for dismissal might relate to an individual’s disability and if it
might, urge employers to reflect on the DDA before dismissing.
Follow-up
steps
An
employer can discriminate by treating an individual less favourably than he
treats, or would treat, others or by failing to make reasonable adjustments to
accommodate the disability and he cannot justify this action. Given this an OHA
will have to look at the employee/patient’s role within the organisation. Issues such as whether any reasonable
adjustments can be made, for example a redeployment or adjustments to working
hours and whether or not the dismissal is capable of justification are factors
to think about. A dismissal will be justified if the employer shows a reason
for the less favourable treatment or failure to make reasonable adjustment
which is material to the circumstances and substantial.
As
yet, there are very few cases on this. The key points for an OHA to consider
whether the course of action is being advocated to you is the appropriate one,
given the obligation not to treat someone less favourably and to make
reasonable adjustments. If no reasonable adjustments are capable of being made
and the employee is suffering from a disability is anything further that could
be done to assist the employee? Creating notes reflecting the thought process
that was adopted when advising an employer including a consideration of the DDA
should enhance the employer’s chances of successfully defending litigation.
Conclusion
It
is clear that when advising an employer about an employee the DDA should
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be
at the forefront of an OHA’s mind.Â
Since the Heinz case, any symptom discovered by an OHA could give an
employer a liability under the DDA. It is therefore vital that when advising an
employer, OHAs do apply the legal definition of disability to the individual.
Since Vicary, however, when it comes to giving evidence at a tribunal, an OHA’s
role will be limited to explaining the diagnosis, prognosis and effect of
withdrawing medication on the employee.
Ceri
Haines-Nutt is a solicitor at law firm Beachcroft Wansbroughs
