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Esther Smith

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Ask the Expert: What is the legal situation around medicals?

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The question

How useful, in practice, are medicals undertaken as part of the recruitment process?
 
If it is standard to make a job offer subject to a satisfactory medical, how do you decide what an unsatisfactory one is?
 
And when would a medical condition be considered a disability? If the medical reveals a disability, what would be the impact in terms of disability discrimination legislation?
 
 
The legal verdict
 
Martin Brewer, a partner at Mills & Reeve
 
Whether to ask for a medical or not is entirely a matter of discretion based on the business or sector you are in (for example, in the NHS, it is a specific pre­-employment requirement for obvious reasons).
 
It follows that what is ‘satisfactory’ relates to the reason for asking. If a given level of fitness is a requirement in certain building trades, for instance, it will be obvious whether there is an issue that would adversely impact on the employee’s ability to do the job.
 
If you are just asking for a medical without a specific reason for doing so, however, then you really should ask why it is a requirement in the first place.
 
A disability for the purposes of the Equality Act is a physical or mental impairment, which has an adverse and long-term effect on an individual’s ability to carry out normal day-to-day activities. Under the old law, the DDA, there was a defined set of ‘normal day-to-day activities’.
 
But because this definition has been abandoned in the Equality Act, such activities could now be wide ranging – even those that are very specific to an individual’s life style, that is, what is normal for them. As to the repercussions of a job applicant having a given disability, this relates to whether that disability has an adverse impact on the individual’s ability to do the job.
 
The employer, or in a recruitment case prospective employer, has a duty to consider reasonable adjustments. These are adjustments to the role or physical environment designed to mitigate the adverse effect of the disability.
 
Failure to consider and make reasonable adjustments is actionable as a stand-alone claim in an employment tribunal, both by those who currently work for you and by prospective job applicants.
 
Martin Brewer is a partner at Mills & Reeve.
 
 
Esther Smith, a partner at Thomas Eggar
 
Medical reports are only useful and should only be used where health or physical ability is a relevant factor in the job. For example, if you wish to employ a scaffolding worker, then asking questions about their physical ability to lift heavy objects such as scaffolding poles would be useful. 
 
But there are limited circumstances where you can ask questions about health before offering someone employment (whether conditionally or unconditionally) and these are contained in S60 of the Equality Act 2010. Such circumstances include where it is necessary to establish that an individual can carry out a function intrinsic to the work concerned (as highlighted in the example above).
 
Under the Access to Medical Reports Act 1988, individuals can refuse to allow the results of their medical to be shown to their prospective employer in certain circumstances. Obviously in this instance, an employer could revoke their offer as no medical report has been provided, let alone a satisfactory one, although they should act with caution if they know or suspect that the applicant has a disability. 
 
Where the prospective employer does receive a medical report, there are no established rules about what constitutes a ‘satisfactory/unsatisfactory’ one. Because the questions being asked in the medical should relate to the job anyway, any health issues that are subsequently highlighted will likely raise concerns over the applicant’s ability to do the job.
 
Disability matters
 
But again, employers will need to proceed with caution if there are indications in the medical that an applicant has a disability. If there are concerns, you should provide the applicant with an opportunity to address them or suggest reasonable adjustments to the job or workplace if possible and appropriate.
 
Only if such activity does not produce a suitable outcome should you deem the report unsatisfactory. 
 
The Equality Act 2010 states that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. ‘Substantial’ in this context means more than minor or trivial and, to be ‘long-term’, the impairment will need to last or be likely to last for more than 12 months.
 
The Act also expressly lists some conditions that constitute disabilities such as severe disfigurement and cancer and some that do not such as alcoholism.
 
A medical report that highlights a disability will not be discriminatory in and of itself, but how you act in relation to that report may be. For example, if you revoke a job offer on the basis of the medical report alone without any justification for doing so, it will be discrimination.
 
If, however, you revoke a job offer because an applicant failed to provide references, which was another condition of the job offer, it would not be discriminatory (assuming it is genuine) as you will not have relied on the medical report at all.
 
In addition, information contained in a medical report will be classed as ‘sensitive personal data’ and employers should ensure that it is collected, stored and processed in accordance with the Data Protection Act 1998.     
 
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
 

  

 
 
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