Richard Freedman, solicitor in the Employment Department at Rosenblatt, answers…
The short answer is no. Whether or not an employee is disabled under the Equality Act 2010 (the “EqA”) is a matter for determination on the facts by an Employment Tribunal. What such a report can assist with, however, is to show that the employer is actively seeking to ascertain the position of the employee regarding any potential disability.
An employee (or worker) who has been absent from work due to illness, or whose performance at work is affected by an illness, may be protected by disability discrimination law under the EqA. There is no minimum qualifying period of employment required for an employee to bring a discrimination claim and there is no upper limit on compensation. Accordingly dismissing an employee who has been on long term sick leave or not accounting for adverse effects caused (or allegedly caused) by impairments inevitably carries with it a degree of risk of disability-related claims.
The protection afforded by the EqA to individuals with a disability is wide ranging, from direct discrimination to a duty to make reasonable adjustments. The large majority of this protection is conditional upon the individual in question having a disability as specifically defined in the EqA. Accordingly, if no such disability exists then the risk of a claim will be significantly less.
When does an employee become classed as “disabled”?
An employee is disabled under the EqA if they have a physical or mental impairment and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Sometimes, it may be clear that the employee is disabled (and some conditions, such as cancer, are automatically deemed to be disabilities under EqA) but in other cases it will be less obvious. In such circumstances obtaining a medical report from an occupational doctor can help direct an employer on whether an individual is likely to be disabled and therefore assist the employer’s decision making process when considering the future of that person within the business.
Occupation Healthcare and Fit for Work service
A good occupational doctor can offer significantly more than simply a statement of whether an individual is likely to meet the criteria of a disability. As mentioned above an occupational doctor cannot definitively determine whether or not an individual they examine is disabled for the purposes of the EqA. Ultimately an Employment Tribunal makes that decision and some Tribunals may not take kindly to an occupational health report which extends beyond its authority and purports to give a determination on disability.
Should the issue of disability need to be determined by an Employment Tribunal it’s always more helpful to have an occupational health report which focuses on the diagnosis of an individual’s impairment, its expected or actual duration and the ease or difficulty with which the individual would or could carry out their normal day to day activities – rather than one which simply states whether they think the individual is disabled. The most helpful reports are generally those which look at the detail of the nature and extent of impairments, how long such impairments would be expected to last and what effects, if any, such impairment had or has on the individual, particularly related to the requirements of their work.
Occupational doctor’s reports can also be used for other assessments than simply “disability”. If an employee is on sick leave, or underperforming, then information can be sought about when the employee would likely be able to return to work and what adjustments could be made to assist such a return, alleviate the effect of their impairment, as well as the likely effects of such adjustments. Such information will put an employer in a much more informed position when it comes to making decisions regarding the future of individuals who may well be disabled, as well as being able to offer more effective assistance to the individual in question.
Of course, engaging an occupational health service is an expense for employers, something which can be especially off-putting for smaller businesses. The recently introduced, and government funded, Fit for Work service offers an alternative if certain criteria are met.
So, if the occupational health report is detailed and suggests that an employee is very unlikely to be disabled are we then on safe ground with regard to disability related claims?
An employer in these circumstances is certainly on much safer ground as there is evidence supporting the position that the individual is not disabled and therefore cannot rely on the protection in the EqA.
However, as mentioned above, the decision of whether an employee is disabled under the EqA rests with the Employment Tribunal and so an occupational health report saying that an employee is not disabled is unfortunately not a guarantee of protection against a claim of disability discrimination. Likewise such a report does not prevent an employee lodging disability related claims, especially if their view, and potentially the view of their GP, differs from that contained within the occupational doctor’s report.
Nonetheless, the information that can be obtained from a comprehensive occupational health report, and the risks such a report can significantly reduce, means that they are an extremely useful asset to employers who are concerned about the possibility of disability related claims.
By Richard Freedman, solicitor in the Employment Department at Rosenblatt.