Member, Jo Oxley recently requested some advice on the considerations of taking on a typist who suffers with neck and shoulder problems in response to this we asked Scottish law firm Dundas and Wilson to offer their expert guidance; read on to see their hot tips and pointers.
She is receiving treatment from a osteopath and says her problems are a lot better. She is waiting for a referral to a rheumatologist via her GP. We are recruiting on a fixed term contract of three months to assess both her capability and shoulder problem (particularly if she is having too much time off). She is happy with this. Has anyone had a similar experience in recruiting and taken any steps to ensure they do not have a potential claim for RSI? Is it possible to get her to sign a disclaimer?
An employer has certain obligations to individuals who are classified as having a “disability” in terms of the Disability Discrimination Act 1995 (the DDA). These obligations extend to employees currently in employment and those they seek to recruit.
As with other forms of discrimination legislation (such as sex and race) the DDA places an obligation on the employer and the employees for whom it is vicariously liable not to discriminate against an individual on the grounds that they suffer from a disability.
In addition to that, the DDA also places a positive obligation on employers to carry out reasonable adjustments to a disabled employee’s role or the role for which they are applying so that they are not placed at a substantial disadvantage in comparison to other colleagues who are not disabled. Examples of reasonable adjustments include physical changes to the working environment, changes to working hours or alteration of duties.
What constitutes a “disability” in terms of the DDA? This can be difficult to assess and there are a number of criteria applied in determining this.
It generally has to be a physical or mental impairment which has a substantial long term adverse affect on the employee’s ability to carry out normal day to day activities.
Repetitive Strain Injury (RSI) is likely to fall within the definition of “disability” under the DDA if the employee has had the condition for at least 12 months or is likely to have it for at least 12 months. In these circumstances, the employee would still be classified as having a disability even if the condition improves.
In the recruitment process, the obligation to consider reasonable adjustments to accommodate a new recruit would only apply if the employer knew, or it was reasonable for them to be aware of the fact, that the candidate suffered from a disability.
In a number of cases, a candidate may not disclose their condition or even consider their condition (where it is easily regulated through medication) as a disability. In these circumstances there would not be an obligation on the employer to carry out reasonable adjustments. In this particular case, however, there would appear to be sufficient information to trigger the obligation to consider reasonable adjustments.
In addition to an employer’s obligation to carry out reasonable adjustments to accommodate a disabled candidate for a post, they also have, under health and safety legislation, an obligation to ensure the safety of the employee.
Given that you have now reached the stage where you are considering recruitment, and the candidate has indicated that she suffers from a medical condition that may hinder her ability to do the job she has applied for, you may wish to ask if she will consent to the company obtaining further medical information about her condition.
The purpose of this medical information would be to assess whether she is fit to carry out the role and whether there are any reasonable adjustments which could be carried out to the role to accommodate her and ensure her condition is not aggravated.
The Company may also wish to consider going back to the previous employer to investigate further the reasons for the termination of her employment and obtain information about the level of her absence and the reasons for this.
Having obtained further clarification on the medical and reference position you will be in a better position to assess whether this individual is capable of doing the role.
I note that you intend to recruit this candidate on a fixed term contract of three months, to assess her capability to do the job, and she has indicated that she is happy with this. If it is the case that you would normally have placed the candidate in a role for an indefinite period then offering this candidate a fixed term contract, solely for the reason that she is suffering from RSI, is likely to amount to less favourable treatment.
Even although she has expressed a willingness to agree to this she may state at a later date that as she has had difficulties in finding employment because of her disability (perhaps evidenced by her previous period of unemployment) she had no alternative but to accept employment on “less favourable” terms.
With regard to the disclaimer, generally speaking, contractual terms which seek to exclude the employers’ liability for personal injury are ineffective. More difficult questions arise where a willing employee accepts the risk of injury, perhaps as evidenced by a waiver. Much would depend on the terms of the document and the circumstances in which it came to be signed.
Obtaining further medical information in relation to her condition should, however, assist you in assessing your potential liability in recruiting her for the post of a typist, and provided you follow the recommendations issued with regard to the extent of her capabilities, then this should minimise the risk of a claim that you have in any way caused or contributed to her condition. This situation would, however, require to be continually monitored.
Of course, while the aim of the Disability Discrimination legislation is to encourage employers not to be prejudiced against employees who have a disability and look at constructive ways to accommodate them, if the candidate is not capable of doing the job even after reasonable adjustments are considered then the Company may refuse her employment.
Mandy Laurie is a Partner and Edward McHugh is a Senior Associate at Dundas Wilson.
One Response
We have done everything right – what now?
We very recently employed a telemarketing person full time and did the whole pre-employment health assessment thing, no issues were raised from this, but sadly, the person raised problems with RSI type symptoms very soon after joining us. We encouraged her to visit the GP, and had an Occupational Health Adviser come here to give an assessment, got a report giving recommendations, some of which are easy, logistical modifications which we can do, no problems. It is the recommendations to reduce the time working at a workstation and reduction in hours to 2 both mornings and afternoons that we are having difficulty with. This is the job, its a desk job using a computer and its varied in as much as you make phone calls and data entry the details. This particular individual has not been signed off sick for 4 weeks by a GP, just what was feared. Are we able to dismiss this person, if we cannot adjust the work tasks or reduce the time at a workstation without risking a claim? I believe it makes sense to extend a probation period to allow for the time off sick, but cannot realistically see how this job can be the right one for this person and do we not have a duty of care to protect this person from work that may make the condition worse. There are no other vacancies in the business, we are a SME and want to do the right thing.