Once the individual starts work, the employer has an ongoing duty to the employee and to others to ensure they remain fit for the job they are doing and to consider reasonable adjustments for disabled employees.
Therefore, employers should consider asking any employees in safety critical roles to undergo reasonably frequent health assessments. It might well be appropriate to ask such employees to see an occupational health specialist yearly and/or after a period of ill-health. As part of this, the employer or occupational health specialist may again want to have access to the employee’s medical records and so it would be wise to ensure that the employee’s contract contains a clause in which they expressly agree to give their consent to such medical assessments or enquiries.
If circumstances arise which mean that the employee is no longer fit for their job, the employer will have to consider whether there are any other roles the employee might be fit and able to do, particularly if the employee’s condition amounts to a disability under the Equality Act. If no adjustments can be made and no alternative role can be found, the employer may have no option but to dismiss the individual because of their incapability.
If the employer finds out that the employee has given inaccurate health information, or if an employee simply refuses to co-operate with an employer’s enquiry about their health, such conduct would need to be investigated and dealt with under the employer’s disciplinary procedure. Depending on the circumstances, the employer might need to suspend the employee from work for their own safety and the safety of others. Deliberately lying or misleading an employer would almost always amount to gross misconduct, entitling the employer to dismiss the employee without notice if established.
See our further expert comment relating to the Glasgow bin lorry inquiry here.
Read our news update here.