Case 1 - Construction worker with epilepsy – making reasonable adjustments

Key points

• An applicant with epilepsy applies for job with a civil engineering firm.
• Can the employer reject the applicant simply because he has epilepsy and will be required to work at heights?
• Is the employee entitled to accept a certain level of risk in relation to his condition?

Steven is a recently qualified civil engineer who has epilepsy. He has applied for a post as a project worker. Because of the hazards presented while working near moving plant machinery or at heights, the recruitment standards for the post adopted by the company excludes employment of applicants with epilepsy. When this policy was challenged by the Human Resources manager, the company’s health and safety officer confirmed that the vacant job was likely to involve work at height and around hazardous machinery and that it would not be safe for someone with epilepsy to work in that environment.

Concerned about compliance with the Disability Discrimination Act, the Human Resources manager requested:

• A management report on the practicalities and cost of eliminating the hazards from the post.
• A specialist medical assessment of Steven’s prognosis and its relevance to the responsibilities of the post.

The management report concluded that while the work in hazardous situations could not be eliminated, it could be substantially reduced with comparatively little cost by reallocating responsibilities involving working at heights to other members of the team and rescheduling duties in the vicinity of plant machinery to times when the machines would not be operating. Hazardous work could effectively be minimised to no more than a few hours annually.

The specialist medical report identified that Steven’s epilepsy was well controlled and placed the annual risk of seizure recurrence between low and moderate. The report enabled the personnel officer, the management team and the individual to agree that with reasonable adjustments, and a review if circumstances changed, the residual risks to the applicant of accident or injury would be well below that accepted on a daily basis in activities such as driving, and the risks to others would be negligible. Steven was recruited to the post.

What are the issues?

This case study raises issues for employers concerned to fulfil their obligations both under health and safety and under disability legislation. But these issues should not be in conflict. The company knew that it had to take extra care over the employment of people in high-risk jobs, but had misunderstood health and safety legislation. There are few cases where health and safety law requires the exclusion of specific groups of people from certain types of activity (healthcare workers with blood borne virus infection must not be employed in work which involves invasive surgical procedures, for example). The company had made assumptions about people with epilepsy without considering their duties under the Disability Discrimination Act.

What is the right approach?

The company achieved the right outcome despite initially tackling the issue inappropriately. Health and safety law does not preclude the employment of someone with epilepsy from working in construction, though it does require that employers carry out a thorough assessment of the risks to health and safety of workers and others affected by the work. The Disability Discrimination Act makes it unlawful to automatically exclude a disabled person, or a group of disabled people from a particular job because of their impairment. This is termed direct discrimination and cannot be justified in law. The employer should amend its recruitment standards to ensure that people are not ruled out automatically on the basis of a health condition or disability.

However, it can be justifiable to reject an individual applicant on health grounds, but only after a proper assessment of the risks associated with their particular impairment. In other words, the employer must look at the facts of each individual case and should seek competent advice, for example from an occupational health practitioner in deciding whether an applicant is fit for work; taking into account the impact of any possible reasonable adjustments. It is also good practice to delay any pre-employment decisions on health grounds until after it has been established that the individual meets all the other essential requirements of the job and a provisional job offer can be made.

Steven’s case was looked at on an individual basis and the health and safety risks assessed properly. By putting in place a number of reasonable adjustments, as required by the Disability Discrimination Act, the risks identified in the assessment were overcome. Thus, with relatively little reorganisation of the work, and at little cost to the employer, Steven was able to join the company.