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Will Occupational Health Always Have the Final Word on Whether an Employee Is Disabled?

on Friday, 09 August 2019.

No - employers must also pay attention to other sources of information and the recent case of Q v L highlights this.

What Happened?

The employee had Tourette's Syndrome and Asperger's. He attended an Occupational Health (OH) appointment before he started his employment, and gave his permission for the OH Adviser to give an opinion to his employer, on his suitability to carry out various tasks. OH confirmed the employee was fit to carry out those tasks but did not include any detail about the medical information it had received from the employee. 

In a subsequent employment tribunal claim the employer argued that the information in the OH report was not enough for it to be fixed with knowledge of the employee's health conditions. 

Whilst the Employment Appeal Tribunal agreed with this, the argument was of no practical use to the employer. There had been too many other indicators that the employee suffered from serious health conditions. As a result the employer was deemed to have knowledge of a disability even though the OH report fell short of fixing them with that knowledge. 

What Can You Learn from This Case?

From an employer's perspective, receiving confirmation that a candidate is fit to carry out their proposed duties does not necessarily mean that the candidate is not disabled under the Equality Act. Employers must always pay attention to the wider information available to them. If there are other indicators that an employee is disabled then the employer might be deemed to have constructive knowledge of serious health issues even if an OH report does not refer to them.

From the employee's perspective, simply telling OH may not be enough to put your employer on notice of a serious health condition. It is important to understand what information OH pass on. 

For more information please contact Michael Halsey in our Employment Law team on 020 7665 0842, or complete the form below.


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