Many employees ask themselves: “do I have to disclose my medical condition to my employer?”. They may not want to disclose such details due to concerns about stigma, or the potential negative impact on career progression. These fears are substantial for many. However, the decision about what to share may well have significant implications. This blog will provide an overview of the issues involved.
An employer may request that an employee completes a health questionnaire once a job offer has been made, or the employer may want information at a later date, such as via an occupational health referral.
A central issue, for both the employer and employee, is why the information is needed by the employer. For example, has an occupational health referral been made due to a prolonged absence. In such circumstances, it may well be the case that more information is needed to understand if steps could be taken to help the employee back to work. Perhaps issues with underperformance have been identified and it was thought that guidance from a healthcare professional may be helpful to identify the cause. In an extreme situation, could health issues prevent the employee from undertaking the essential duties of the role? A basic example would be when the role requires driving vehicles, or operating machinery, and the individual is currently unable to do such activities safely due to, for example, epilepsy.
If an employee’s condition meets the definition of a disability in the Equality Act, the Act provides various protections such as a duty to make reasonable adjustments, protection from discrimination etc.
A duty to make reasonable adjustments may involve changes to working hours, modifications to duties or support through equipment or adaptations to the workplace. However, it is important to remember that the above are simply examples: it is not possible to list all potential adjustments because what may constitute an adjustment is extremely broad, and whether or not such adjustments would be reasonable would depend on the circumstances.
In addition to the duty to make reasonable adjustments, the Equality Act also protects disabled people from, among other things, discrimination arising from disability. This protection covers situations when a disabled person is treated unfavourably because of something arising from their disability. A basic example would be a disabled employee who is dismissed due to disability related sickness absence. The dismissal would be the unfavourable treatment and the something arising would be the absences. If the employer is unable to show that the dismissal is a proportionate means of achieving a legitimate aim a claim of discrimination arising from disability would succeed.
As referred to above, the Equality Act provides various protection to disabled people. However, this protection only arises when the employer has actual knowledge of the employee’s disability or when there is what is often referred to as constructive knowledge. Constructive knowledge is where the employer ought reasonably to have known about an employee’s disability based on the information available, such information may well include that provided to, or from, occupational health. Given the requirement for knowledge, if you choose not to disclose your impairment(s), and the signs are not clear enough to alert your employer to the situation, you may be unable to benefit from the protection of the legislation.
Contents
Do I have to disclose my medical condition to my employer – the role of occupational health
Occupational health practitioners often play an important role in assisting an employer to support an employee. For information on the role of occupational health, read our blog. Can occupational health overrule GP? An employee may choose not to engage with occupational health, or may not consent to medical information being disclosed. However, if such information is not available to an employer, it may well be the case that the employer makes decisions, such as dismissal, based on the information available at the time of the decision. Similarly, a Tribunal may find that the employer did not have the required knowledge of the disability at the relevant time.
Can an employer be expected to know of a disability even if it is not disclosed?
Obviously, explicitly informing the employer of a disability is the simplest way to notify an employer of the situation. However, it is not always necessary. As referred to above, an employer is found to have such knowledge if the employer ought reasonably to be expected to know of the disability in the circumstances. This may mean that, based on the information available, further enquiries (such as via an occupational health referral) would be appropriate. Whether or not an employer has the required knowledge or not, at the relevant time, is a matter for the Tribunal to decide.
Legal implications for employers of not managing the process properly
It is important that employers follow a fair process and have sufficient information to make informed decisions. This is particularly so in complex cases, such those that may involve disabilities. The legal consequences can be significant if care is not taken at each stage. For example, employees who are dismissed, disciplined or treated unfavourably because of a disability, or because of something arising from that disability, may bring claims in the Employment Tribunal. These claims may involve disability discrimination, discrimination arising from disability, harassment, failure to make reasonable adjustments etc. In addition to the disability claims, employees who have been dismissed, and have sufficient service, may pursue a claim of unfair dismissal. Furthermore, in appropriate circumstances, employees, with sufficient length of service, may resign and claim constructive dismissal if they believe their employer’s handling of the situation has fundamentally breached the employment relationship.
Plotkin & Chandler works exclusively in the areas of HR and employment law and assists both employees and employers.
If you are an employee, and need advice regarding how to manage issues relating to a disability at work or you would like to discuss bringing an Employment Tribunal claim, we can help.
If you are an employer who would like guidance on navigating the process relating to disability at work we can assist at all stages. In addition, we assist clients with defending Employment Tribunal claims.
Please contact us on 020 3923 8616 or via email on info@plotkinandchandler.com to discuss your needs and the ways in which we can help
