SOCIETY OF OCCUPATIONAL MEDICINE
GUIDELINES FOR OCCUPATIONAL PHYSICIANS ON THE
DISABILITY DISCRIMINATION ACT 1995
(Continued - Part 3)
Organisational Issues: Role of the Occupational Physician
In order to help avoid discrimination against potential or existing disabled employees, it is advisable for an employer to establish a policy which covers disability matters. This is a key area where occupational physicians can assist management to develop a policy which will support procedures to reduce the chance of discrimination and establish the role of occupational health staff in the companys processes. Organisations may already have an existing equal opportunities policy, covering matters such as sex and race (or religion in Northern Ireland). Such a policy may be amended to include disability. It should be noted however that the Disability Discrimination Act differs from other equal opportunities legislation in not being symmetrical, as it provides no rights to non-disabled people (unless they are victimised e.g. for being a tribunal witness in a complaint under the Act).
The key elements of such a policy should include the following:
As well as assisting in the development of the policy, occupational physicians can play a role in communicating the policy to line managers and employees and provide training in disability awareness where necessary.
Occupational physicians can also contribute to a review of other company policies and procedures which may have a disability component that could give rise to unlawful discrimination. Examples are policies or procedures covering:
The Act also has specific provisions relating to pensions and insurance, which should be reviewed.
In addition to organisational policies and procedures, a thorough review should be conducted of specific occupational health service policies and procedures to ensure that these are not inadvertently discriminatory.
This will include a review of health and fitness standards applied to particular jobs and a reappraisal of the methods used to assess individuals. Essential to this process is a requirement to have objective information on the physical and psychological demands of the jobs within the organisation (see Sections - Assessment of Fitness for Work & Job Analysis).
In reviewing occupational health practices, procedures for consideration and implementation of reasonable adjustment must be included.
Bench marking with other occupational physicians in similar industries will be increasingly important. This will foster an evidence based approach and achieve a broader consensus on fitness for work standards, which will allow an employer to demonstrate that they are acting in a reasonable manner and assist in justification of decisions which may be subject to complaints of discrimination.
Confidentiality & Communicating Advice
The Disability Discrimination Act places a duty on the employer not to discriminate against a disabled person without justification. However, there is in general no duty on the employee/job applicant to inform the employer of a disability. On the other hand, an employee who failed to protect others against the consequences of his disability might be held liable under the Health & Safety at Work Act 1974 or for common law negligence.
For example someone who is required to work at heights but develops epilepsy and is experiencing fits should either resign or inform his employer, as by climbing ladders or working on high scaffolding he would be placing himself, other workers and potentially the public at serious risk of harm. The employer, once he knows of the disability would be under a duty to make reasonable adjustment.
Where a disability or its effects are reasonably obvious, or the employer is informed by the employee/applicant of a disability, then the employer will be assumed to have knowledge of the disability.
Knowledge of a disability may be imputed to the employer where another employee, such as an occupational physician, has knowledge of the disability. This is true even if the disabled person insists on their right of confidentiality being maintained, thus preventing the disclosure of the disability to the employer.
The Working Group considers that part of the occupational health physicians duty of care to the employee or job applicant is to advise him of the advantages and disadvantages of disclosing a disability to the employer. This should be documented.
If a disabled employee or job applicant insists on confidentiality, but the occupational health physician considers disclosure is necessary, then it may be possible to agree a compromise, where the effect of the disability or the need for adjustment is explained to the employer, without release of clinical or other sensitive information. For example an employee with Crohns Disease who has problems with diarrhoea may not be able to tolerate travelling during the rush hour. The reasonable adjustment may be to start work later. This could be discussed with management without disclosure of the medical condition or nature of the problem.
It is already well established, good practice, within occupational health, to provide general advice to an employer about fitness for work and reasonable adjustment, without actually disclosing detailed medical information. The Working Group believe that this approach will allow occupational physicians to discharge their duty of care both to the employee or job applicant and to the employer. This should also enable employers to meet their duty under the Act without prejudicing the individuals right to confidentiality.
Section 4.63 of the Code of Practice indicates that information will not be imputed to the employer if it is gained by a person providing services to employees independently of the employer (4). This would apply to counselling services such as employee assistance programmes provided from a separate organisation. An in-house occupational health service which provides counselling directly to employees, as well as other services, is likely to be staffed by employees. In this situation an occupational physician who gains confidential knowledge through counselling a client, may find that this knowledge will be imputed to the employer.
The contractual arrangement between the occupational physician and the employer would appear to be less relevant to other aspects of the physicians work.
The form of communication between the physician and management is important. The aim should be to inform the employer in order that they may recognise and meet their statutory duties. Simple reports such as "unfit for work" will not assist the employer in considering reasonable adjustment and may in themselves represent a failure of duty of care to both the employer and employee, if reasonable adjustment is not considered and unjustifiable discrimination occurs.
Many employers are making increasing use of contract staff supplied by another employer, either as a supply of labour or to manage tasks within the employers organisation.
Occupational physicians should be aware that duties under the Act apply to the principal employer as if it was the actual employer of the contract worker, as well as to the actual employer.
Employers will, therefore, require advice on how to avoid discriminating against disabled contract workers. This may require setting standards for the provision of occupational health advice to contract employers and monitoring how the contract company meets these standards. This will protect the interests of the principal employer to which the occupational physician is providing an advisory service.
Interaction with other Legislation
The Act makes clear that an employer is not expected to breach health and safety legislation in employing or making reasonable adjustment for a disabled person. This does not offer an easy way out, but may place responsibility on the occupational physician to accurately assess the risks of harm that may be associated with an individuals disability. The occupational physician will have to consider what reasonable adjustments may be made that would allow a disabled individual to continue working safely (see Sections on Assessment of Fitness for Work and Reasonable Adjustment).
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