1. Professor Diana Kloss MBE barrister
Legal update 2017
Professor Diana Kloss MBE
barrister

2. Criminal law Section 3 Health and Safety at Work Act 1974
It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
Application to OH provider?
R v Audio Medical Services Ltd (2012) Bodmin magistrates court

3. The ‘gig’ economy Difference between: Employees Workers
Self-employed persons
Employment Rights Act 1996
Worker is an individual who has entered into or works under either a contract of employment or a contract whereby the individual undertakes to perform personally any work or services for another party whose status is not that of a client or customer of any profession or business undertaking carried on by the individual….
Aslam and Farrar v Uber (2016) Uber drivers are workers and entitled to holiday pay and NMW

4. GMC guidance on confidentiality 2017
OH should see a written consent to a management report. OH should offer to show the patient a written copy of a report to management and allow him to withdraw consent if he wishes.
There is no need to obtain consent to a notification that the patient did not attend or refused to consent to an OH report.
Reports should be made without consent in the public interest but only after the matter has been considered and discussed with a Caldicott guardian or senior colleague or protection society.

5. Equality Act: reasonable adjustments
The employer has a duty of reasonable adjustment to assist workers with a disability with respect to:
1. Provisions, criteria and practices (PCP). Includes duties of the job, place of employment, hours of work, provision of breaks, training, disciplinary and grievance procedures etc.
2. Physical features. Includes access, toilets, lighting, emergency evacuation, furniture etc.
3. Provision of auxiliary aids, including services, without cost to the worker. Includes software, sign language interpreter, support worker etc.
See also the Equality and Human Rights’ Commission’s Code of Practice on Employment (2011)

6. The worker must be disabled
They must have
A physical or mental impairment that is
Long term (12 months or more) and
Has a substantial adverse effect on normal day to day activities, which includes work activities
Cancer, HIV infection and MS are automatically disabilities from diagnosis
It applies to workers in employment and job applicants. No minimum period of service is necessary.

7. Employer’s knowledge
The employer is not under a duty to make a reasonable adjustment unless he knows, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage.
“The Act does not prevent a disabled person keeping a disability confidential from the employer. But keeping a disability confidential is likely to mean that unless the employer could reasonably be expected to know about it anyway, the employer will not be under a duty to make a reasonable adjustment”. (EHRC Code 6.20)

8. Constructive knowledge
DWP v Hall (2005)
Employer deemed to know of a disabling psychiatric condition because of employee’s behaviour at work.
NB Where a worker refuses to co-operate in obtaining medical evidence the tribunal will be reluctant to hold that there is constructive knowledge.
Wilcox v Birmingham CAB Services Ltd (2011)

9. Hartman v South Essex Mental Health Trust (2005)
The employer is NOT deemed to know what OH knows but has kept confidential unless he has constructive knowledge
Employee told OH physician of a history of depressive illness which he kept confidential
The employee later argued that because the employer had notice of her increased vulnerability the duty of care was greater
It was held that the employer did NOT know and therefore there was no greater duty

10. Knowledge of OH
“An OH adviser is engaged by a large employer to provide them with information about their workers’ health. The OH adviser becomes aware of a worker’s disability that is relevant to his work, and the worker consents to this information being disclosed to the employer. However, the OH adviser does not pass the information on to HR or the line manager. …it is not a defence for the employer to claim that they did not know about the worker’s disability…”.
EHRC Code 5.18

11. What is reasonable? The following considerations are relevant:
Would the adjustment be effective in avoiding the disadvantage?
Is it practicable?
How much would it cost and how disruptive would it be?
The extent of the employer’s financial and other resources.
The availability of financial assistance (eg through Access to Work).
The type and size of employer.
NOT resentment from other workers, except that placing an unreasonable burden on other workers IS relevant.

12. Can the manager rely on OH’s advice on disability?
Gallop v Newport CC (2015) Court of Appeal
The employer was not entitled to rely on a bald statement by an OH physician that an employee did not have a disability without giving any reasons for his opinion.
This is a legal not a medical question.
OH should report on whether there is an impairment, how long it has lasted or is likely to last, and what effect it has on activities.
They can say that it is likely/unlikely that there is a disability.

13. Examples of adjustments
The purpose of an adjustment is to get the worker into work or back to work.
Salford NHS Primary Care Trust v Smith (2011)
Tameside Hospital NHS Trust v Mylott (2010)
London Borough of Hillingdon v Morgan (1998)
O’Hanlon v HMRC (2007)
Meikle v Notts CC (2005)

14. Attendance management procedures
There is a duty to make reasonable adjustments to triggers in attendance management procedures
Griffiths v DWP (2016) Court of Appeal

15. Finding another job Archibald v Fife Council (2004)
Chief Constable of South Yorkshire v Jelic (2010)
G4S v Powell (2016)
NB the employee must consent to transfer to the new job

16. Adjustments to pay G4S v Powell
Employment Appeal Tribunal indicated that this might be a reasonable adjustment, quoting EHRC Code 6.33:
“A disabled worker who is paid purely on her output needs frequent short additional breaks during her working day –something her employer agrees to as a reasonable adjustment. It may be a reasonable adjustment to pay her at an agreed rate (for example, her average hourly rate) for these breaks”.

17. Adjustments to pay
“Workers who are absent because of disability-related sickness must be paid no less that the contractual sick pay which is due for the period in question. Although there is no automatic obligation for an employer to extend contractual sick pay beyond the usual entitlement when a worker is absent due to disability-related sickness, an employer should consider whether it would be reasonable for them to do so”. EHRC Code 17.21
Phased return to work??
Disability leave??
Part-time working??

18. Disability leave
“A worker who has cancer needs to undergo treatment and rehabilitation. His employer allows a period of disability leave and permits him to return to his job at the end of this period”.
EHRC Code 6.33

19. Disability leave
“Disabled workers may sometimes require time out during the working day to attend medical appointments or receive treatment related to their disability….If, for example, a worker needs to take a short period of time off each week over a period of months it is likely to be reasonable to accommodate the time off”. EHRC Code 17.23

20. Remember section 15! A discriminates against a disabled person B if:
He treats B unfavourably because of something arising in consequence of his disability AND
A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
This does not apply if A shows that he did not know, and could not reasonably be expected to know, that B had a disability.

21. Recent cases on section 15
Land Registry v Houghton (2015)
Risby v London Borough of Waltham Forest (2016)
T Systems v Lewis (2015)
Hall v Chief Constable of West Yorkshire (2015)
Bolton St Catherine’s Academy v O’Brien (2017)