Update - Health Issues at Work

Author:Mr Michael McLaughlin
Profession:Biggart Baillie

Misconduct Caused By Illness

It is entirely possible that this recent judgement may lead to an increase in referrals by employers to occupational health professionals. The case certainly emphasises that employers must properly address health issues that arise in the context of disciplinary proceedings for misconduct if they want to avoid liability for unfair dismissal and disability discrimination.

Mr Dickson had worked for Edinburgh City Council for 28 years. He has type one diabetes. In recent years, his condition has been poorly controlled and was exacerbated by an unnoticed mis-prescription of insulin of the wrong strength. He has had 3 of his toes amputated as a result of neuropathy.

Mr Dickson was found to have viewed pornographic images whilst at work. In responding to the allegations he said he had no recollection of the doing this. However, he accepted that the evidence his employer had gathered show that he had done so. He stated that his behaviour must have been a result of his condition. He argued that a diabetic undergoing, a hypoglycaemic episode can behave wholly out of character and subsequently have no recollection of what he has done. The employer referred Mr Dickson to an Occupational Health Specialist. In particular, it posed the question "inappropriate behaviour at work, could it be caused by a hypo – answer – "yes".

The dismissing manager had sight of the report before he made his decision but strangely he seemed to prefer a view expressed by his HR Manager's wife (a pharmacist) who told her husband the night before the disciplinary hearing that Mr Dickson's condition could not have caused his behaviour. The employer rejected Mr Dickson's explanation. It believed the conduct was conscious and deliberate. Mr Dickson was summarily dismissed for misconduct. His appeal against dismissal was unsuccessful.

The Employment Tribunal and subsequently the Employment Appeal Tribunal ("EAT") decided that he had been unfairly dismissed due to the fact that his employer had made no real attempt to investigate or understand his argument that his conduct was as a result of his medical condition. The employer simply discounted the argument without any medical basis for doing so.

Interestingly, the EAT (the upper court) commented that it could understand why the employer was sceptical about the explanation that had been given for the behaviour. That however, they said, did not excuse the employer's failure to engage in any meaningful way with the medical issues. Had they done so they may have discovered facts which would have lead them to refrain from dismissing Mr Dickson.

This case highlights the difficulties for employers in apparently clear cases of misconduct where the employee raises a medical defence. It may be that in light of this case, there will be more medical referrals to occupational health professionals in the context of disciplinary proceedings will become more common.

Pre-Offer Health Questions Unlawful

Assuming that the Equality Act comes into force as planned in October 2010, employers will be prohibited from asking questions about the health of a job applicant prior to a job offer being made to that applicant. The move is clearly designed to prevent employer's refusing applications on the ground of health whilst maintaining that the real reason for the refusal is on the basis of qualifications, skills, experience etc.

Questions on health issues can be asked once an offer has been made however it will be risky for an employer to withdraw an offer of employment if it does not like the answers to the health questions unless the applicant's health is such that his or her ability to carry out the job is called into question

Protection For Those Caring For A Disabled Person

Protection under the Disability Discrimination Act ("DDA") has now been extended to employees who are not disabled but who instead care for others who are disabled.

The DDA in its current form provide specific protection for those who care for disabled individuals. The European courts have now ruled in a UK case (Coleman vs. Attridge) that the EU law, from which the DDA is derived, is capable of extending protection to those who care for the disabled even though the EU directive does not specifically say that.

Mrs Coleman has a disabled son. She made a flexible working request so that she had more time to care for her son. It was refused. She alleges that this sparked a catalogue of harassment at the hands of her employer which led her to resign. Undeterred by the absence of any form of protection under the DDA she raised a disability discrimination claim on the basis that she had been harassed because of her son's disability. The European court said that the EU law could extend to those caring for or associated with disabled person. When the case was referred back to the Employment Tribunal in South London, it felt bound to follow EU law and effectively re-wrote the DDA to allow Mrs Coleman's claims to proceed

One slightly unusual consequence of this development is that parties to Employment Tribunal proceedings involving claims of disability discrimination may well end up arguing over whether or not a relative of an employee has a qualifying disability for the purposes of the DDA. Medical professionals providing expert reports may well be asked to see and report on the health conditions of for example children and elderly relatives of employees rather than the employees...

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