Giving advice on Questions relating to Disability and the Equality Act
A recent Appeal Court Judgement (Gallop v Newport County Council) reported in:
http://www.bailii.org/ew/cases/EWCA/Civ/2013/1583.html sheds valuable insight into what information employers must consider in relation to their responsibilities under this element of the Equality Act. Although this judgement is directed more towards employers this has an impact on an occupational health provider to give employers appropriate information.
This is intended to supplement any existing guidance on the Equality Act (CMA Guide 64) and Report Writing (CMA Guide 68). Clinicians should take some time to read the case in full and reflect on the implications for their own practise.
Summary of Decision
The case concerned an employee whose long term absence led to referral for occupational health advice. Several reports from the occupational health physicians gave the advice that “in their opinion the individual was not disabled under the Act”. An Employment Tribunal subsequently established that the employee was disabled under the Act. The legal action was against the employer whose defence was that they relied and acted on the professional advice from an external occupational health provider prior to the Employment Tribunal decision. Although the judgement referred to the previous Disability Discrimination Act the lessons remain applicable to the newer Equality Act.
The employer’s argument was rejected by the Judges who made some pertinent points:
• Any responsible employer has to make their own judgement as to whether an employee is disabled under the
Equality Act though they may well seek advice from Occupational Health or other sources
• The decision remains a legal/ employment not a medical one
• The need for the employer to pose practical questions rather than reliance on advice in general terms on whether
an employee is disabled within the meaning of the Act
The judgement did not, as has wrongly been quoted, indicate that occupational health advice was worthless!. Rather it implied that a medical opinion (no matter how well qualified the practitioner) on the question of whether any individual was disabled under the terms of the Act could not be relied on as definitive.
DiscussionIf we focus on the third bullet point above, employers will need to think carefully about what practical questions to pose to assist them in their duty under the Act. General questions such as “in your opinion is the Equality Act likely to apply?” or “is this person disabled under the terms of the Equality Act?” may lead to answers which do not provide sufficient information to allow the employer to place themselves in a position of having actual or constructive knowledge.
All clinicians need to think carefully about what information they should provide to employers on this important issue.
We should reflect on the three linked questions which allow a determination on Disability under the specific wording of the Act:
• Is there evidence of a physical / mental impairment
• If so has this had a substantial effect on ability to undertake daily activities (as defined by the Act)
• If so does this meet the definition of long term adverse effect
These questions provide clinicians with a structure for providing information even if the employer uses a “blanket question” on disability. For clinicians to add value to a report the advice should reflect an evaluation of the clinical situation with relevance to these 3 questions. Clinicians should be as explicit as possible in their explanation and justification including reference to the nature of the evidence e.g. is it based on clinical findings, reported history alone or from external sources.
As we are all aware there are some clinical conditions specified in the Equality Act which confer statutory entitlement. However, clinicians also have to be careful to comply with the individual’s consent on what clinical information to disclose while at the same time providing sufficient information to allow the employer to meet their responsibilities.
Clinicians may wish to audit and reflect on their own practice and ensure that their advice provides information to the employer to cover these questions not just a statement of opinion. At Healthwork, we will be providing training for our clinicians to ensure they are aware of the above and we will be asking clinicians to ensure that they are able to explain and justify any advice offered.
- Marlowe plc acquires Healthwork
- Free COVID-19 Testing for all
- The Healthwork Academy
- Healthwork Trauma Therapy
- The Healthwork Academy
- The Healthwork Academy
- Ideal Standard: Flushing out the Coronavirus
- Vaccinating against COVID19 Podcast
- How Healthwork helped bowl out Coronavirus to bring back International Cricket
- The England and Wales Cricket Board (ECB) and Healthwork working together to create a safe space and place for the return of Cricket.