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Employer’s Obligations – Disability and Capability

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Andrew Egan

Andrew Egan

Andrew Egan, an employment lawyer with Charles Lucas & Marshall explains the process employers should follow if a member of staff is disabled or suffers from a long term illness which means their work is affected.

An employer has a legal duty to make reasonable adjustments for an employee where the employer knows, or could reasonably be expected to know, that the employee is disabled and is likely to be placed at a substantial disadvantage as a result of their disability.

If the employee has a clearly diagnosed condition and tells his employer about it from the outset, no question as to the employer’s knowledge will arise. If, however, the employee keeps this private, or does not have an official diagnosis or is not aware of their disability, it may be difficult for the employer to determine whether they are under a duty to make such adjustments.

Employers dealing with an employee who is or appears to be, suffering from an illness that affects their work should usually seek medical evidence at an early stage. The evidence might come from the employee’s GP or consultant, but in many cases, Occupational Health (OH) will be the best source as they are able to provide impartial advice and expertise.

OH may need access to an employee’s medical records or the employee’s medical advisers to give a definitive view. This is often the key to avoiding a successful discrimination or unfair dismissal claim.

An employer should not delegate to OH the assessment of whether an employee is disabled and whether there are reasonable adjustments to be made and just rely on the answers from OH. The employer should reach its own view on both issues. Employers should seek a focused OH report that is directed at the particular circumstances of the employee’s condition and the effects it has.

Employers should ask OH for their view on whether the employee satisfies the legal definition of disability, but also address specifically the information that would enable the employer to assess each of the elements of that definition.

Even where an employee’s condition does not appear to amount to a disability, employers may still need to make adjustments to accommodate the employee, for example, to avoid claims of unfair dismissal.

Employers always need the employees’ consent for medical information and advice to be disclosed. However, where an employee fails to provide that information, refuses to consent to the disclosure of medical reports, or delays his employer’s attempts to obtain medical evidence, Tribunals are likely to be more sympathetic to the employer and may find that the employer was not on notice of the employee’s condition. Where employees are uncooperative, employers should ensure that they explain the importance of getting the evidence, and the employee’s refusal to co-operate should be clearly documented.

For further information please contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

April 27th, 2015 at 3:22 pm