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Andrew Crudge

Thomas Eggar

Solicitor

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Ask the Expert: What do we do about a new hire who hasn’t told us about her disability?

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The question

We have recently offered a job to someone who gladly accepted it and the contract has now been issued and signed.
 
But just before her start date, she indicated that she has a disability that has an effect both on her health and her ability to carry out the role.
 
We have had to defer her start date pending a full medical report from her GP as we need to know if her disability is covered under the Equality Act. I am frustrated now because the GP is not responding to our request and the employee is eager to join us.
 
What is our legal position here and what advice can you give me on how to handle the situation?
 
 
The legal verdict
 
Andrew Crudge, solicitor at Thomas Eggar
 
If an employee (or job applicant) suffers from a disability, they have protection against less favourable treatment because of their disability. There would also be an obligation on you as the employer to make reasonable adjustments to avoid any disadvantage that they suffer so that they can begin working.
 
Even though this individual has not yet started working for you, these obligations apply and, if she is treated less favourably or reasonable adjustments aren’t made, she could have grounds for a disability discrimination claim.  
 
However, you also have obligations under Health and Safety legislation to ensure that employees are able to safely carry out their role. Therefore, it is important to obtain full information as to the medical condition that she suffers from in order to ensure that it is safe for her to start working.
 
Given that the GP is not responding to requests, you could refer her for an Occupational Health Assessment. Professionals here should be able to give an opinion as to whether the individual suffers from a disability and, if so, what reasonable adjustments could be made to enable her to carry out her role safely.
 
If these adjustments can reasonably be accommodated, you have a legal obligation to implement them in order to enable her to start working. 
 
However, if the Occupational Health report suggests that the individual is unable to carry out her role for the foreseeable future and there are no reasonable adjustments that can be made, it may be necessary to begin the process for a capability dismissal.
 
Andrew Crudge is a solicitor in Thomas Eggar‘s business services team.
 
 
Adam Partington, a solicitor at Speechly Bircham
 
This sounds like a frustrating situation for both you and the employee to be in. How you handle the situation is likely to be influenced by the nature of the possible disability and the role that she is going to undertake.
 
However, now that the employee has indicated she has a disability, it is important that that you do not do anything that could amount to discrimination against her such as withdrawing the job offer.
 
Allowing her to start the role before you get the report back from the GP may also be risky if it turns out that there are things you should be doing to assist her. Now that you have started down the path of obtaining a GP’s report, it would seem prudent to wait and see what the report says before she starts work.
 
If, however, the employee starts to make an issue of waiting to commence employment before the report has been produced, it would be sensible to revisit your approach and determine the level of risk that you would be taking if you allowed her to start work.
 
It is not clear whether you have made the request for the report under the Access to Medical Reports Act 1988? In essence, this is a formal process for obtaining a medicl report and there are a number of safeguards to protect the staff member in relation to such a requst.  
 
They include a requirement that the employer gives the employee a statement of their rights. The employee also needs to provide written consent to an examination and the preparation of a report, and be given the opportunity to see the report before it is sent to the employer.
 
The employee may request changes to the report but cannot insist on them. They are able to refuse that the report be disclosed to the employer, however.
 
But to advise on whether this is a factor contributing to the delay and how to tackle it, it would be necessary to understand what communications you have had with the GP and employee already.
 
Adam Partington is a solicitor at Speechly Bircham LLP.
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Andrew Crudge

Solicitor

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