Suzanne has a condition known as Ménière’s disease, a disorder of the inner ear that can cause problems with balance, as well as tinnitus and dizziness. After disclosing her condition on a pre-employment health questionnaire she was told by the employer that it cannot confirm her appointment as a warehouse manager until she has been ‘risk assessed’, which involves her coming in for a medical. Suzanne’s friend already works for this company and told her that he’s never heard of anyone having a medical before joining the firm. Suzanne has been doing warehouse management work for another employer for more than 10 years and her condition has never been an issue.
The employer has requested health information from the job applicant but has said that her appointment now depends on a risk assessment, which will involve a medical examination. They have asked her to attend for a medical assessment, which they do not do for other recruits and this, of itself, is likely to be unlawful. It may be that the employer has concerns about Suzanne’s safety, although they do not seem to have taken into account her previous work in the area, or talked with her about what adjustments and measures worked for her in her previous place of employment.
The employer should conduct a thorough risk assessment to ensure that it has identified the risks to the health and safety of all those who may be affected by its activities – including members of the public – and put in place measures to prevent or control those risks. The risk assessment should identify whether there may be additional risks to people with health conditions or impairments and, again, address these risks with appropriate control measures where possible.
The employer is in danger of subjecting Suzanne to unlawful discrimination by conducting a risk assessment that had no relevance to the safety of the job – the fact of having a disability is not grounds for assuming that there is a health and safety risk. The DDA Code of practice – employment and occupation1 makes clear that ‘an employer should not subject a disabled person to a risk assessment if this is not merited by the particular circumstances of the case’.
With regard to Suzanne’s pre-employment declaration, the occupational health professional responsible for assessing the health assessment forms will be able to advise the employer if any particular issues need to be addressed in relation to her condition. The occupational health nurse or physician may need to consult the employer or health and safety officer to find out more information on the nature of the job. Occupational health professionals should always seek consent from individuals before disclosing any confidential health details.
The occupational health professional may conclude that Suzanne’s work is unlikely to raise any issues for her – assuming she is not required to work at height on raised platforms, for example. But even if some risks were identified, and these were not readily controlled by health and safety measures, the occupational health professional will be able to advise the employer on likely reasonable adjustments to address the remaining risks, such as reassigning certain parts of the job to other workers or allowing her to take time out when her condition worsens. Given Suzanne’s long experience in this kind of work, the adjustments, if any, are likely to be fairly straightforward.
In the event that Susanne is turned down for the post because of her condition, and has good reason to believe that this is not justified given the nature of the job, she may be able to seek redress at an employment tribunal.
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