One of our workers has expressed an interest in driving a forklift truck. However, we are aware that he has epilepsy, so are concerned about health and safety issues should he have an attack while driving it. How can we address the balance between potential disability discrimination and health and safety issues?
You must not directly discriminate against this employee because of their disability. There is no justification defence to this form of discrimination.
While there appears to be a conflict between avoiding direct discrimination and health and safety risks, if consideration is given to eliminating the risks, then both requirements should be met.
Think about whether any reasonable adjustments can be made to allow this employee to drive the forklift. This is the employer’s duty under the Disability Discrimination Act. Consider:
Modifying the forklift to cater for the employee – for example, limiting the vibration.
Limiting the amount of continuous time the employee spends on the forklift (this is because tiredness is a major cause of epileptic fits).
Making adjustments to the premises, such as removing flashing lights.
Training the employee on driving forklifts, including taking regular breaks to decrease the risk of a fit.
Carrying out a health and safety risk assessment on the actual risks involved in this employee driving a forklift.
Obtaining a medical opinion on the risks and any reasonable adjustments, preferably from an occupational health professional.
If there are no reasonable adjustments that can be made to sufficiently reduce the identified risks caused by the epilepsy, then not allowing the employee to drive the forklift is not directly because of their epilepsy, but on the grounds of safety. In that case, the defence of justification may be used.
For these reasons, the Disability Rights Commission Code recommends a thorough risk assessment by a suitably qualified individual, taking into account appropriate medical evidence.
By Stuart Jones, employment partner, Weightmans