I would agree with Glenn and Greta. You know what you know and need to be
upfront about that with the employee. If she does have a significant
condition, (and I sense a little doubt about that one) you have a duty to
protect her against the risks of exacerbating the condition in another job
for which you have the duty of providing OH advice.
You also have nearly as much of a duty to your contract as you do to the
employee. I don't think they would be very pleased if they took the person
on and then found out later what you previously knew. A discussion and
referral to the OH Physician is essential on this one and an honest report
to the prospective employer about the capability issues to follow. I don't
think you will be breaching a confidence as you will not need to reveal
medical info, you will just be providing honest and robust management
information and advice which it is your duty to do.
Best of luck
Lindsey Hall
National OH Manager
Environment Agency
----- Original Message -----
From: "Nick Manthorpe" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Saturday, January 11, 2003 10:35 AM
Subject: Re: Recent Court of Appeal Judgement
> Dear Denis and List,
> I would like to ask you advice about the following case.
>
> I have a Health Care asst who has been off sick for many weeks with
painful
> knees (not being actively treated or investigated or considered a
> significant issue by her GP but who continues to write sick certs). This
> employee works for one of our external contracts.
>
> This same employee has now applied to work at in the hospital undertaking
> the same work she has been offered a job subject to OH clearance and
> References. She has not declared her significant sick time on her new
health
> declaration form but has mentioned a resolved knee problem (Although she
is
> still off sick!).
>
> I have asked her to attend for a health clearance interview next week. the
> question is can I use the other health information in forming my opinion?
If
> we were not her current employers Occupational Health Provider we probably
> would not know her current sickness etc.
> Although we would still have asked to see her because of her knee problem.
>
> I look forward to your replies.
>
> Regards,
>
> Sue Manthorpe
> Occupational Health Manager NHS
>
> -----Original Message-----
> From: Occupational Health mailing list
> [mailto:[log in to unmask]]On Behalf Of Dennis Macwilliam
> Sent: 10 January 2003 19:56
> To: [log in to unmask]
> Subject: Recent Court of Appeal Judgement
>
>
> Readers may be interested in a recent decision of the Court of Appeal
> [Coxall v Goodyear Great Britain Ltd (EWCA 2002 Civ 1010)]. The case
> itself is the subject of a short article in "Health & Safety Bulletin"
> [December 2002, No. 314], from which I have taken the following extracts
[I
> hope Howard Fidderman won't mind]............
>
> "an employer's failure to follow its doctor's adice to move - or
ultimately
> dismiss - an asthmatic employee from a job that was causing him harm was a
> breach of duty." However, the Appeal Court insists that its judgement
> does not establish a new principle, and its ruling cannot always be
> followed.
>
> The case itself concerned an appeal by Goodyear Great Britain Ltd against
> an award by Walsall County Court to Mr Coxall, who had contracted astma
> through working as a paint operator. Goodyear introduced a spray paint
> that caused headaches and other symptoms to Coxall and some of his
> colleagues.
>
> Goodyear Ltd then provided rubber gloves, goggles and respirators which,
> the trial judge ruled were all reasonably practicable steps necessary to
> make the process safe.
>
> Coxall, unknown to himself or to Goodyear - was predisposed to asthma and
> was subsequently told by the works doctor that he should not work with the
> paint. A written memo from the doctor to Goodyear failed to reach
Goodyear
> management, and Coxall continued to work with the paint.
>
> In May 1996 Coxall was diagnosed with occupational asthma caused by
> irritant fumes consequent to his predisposition, and was certified unfit
> for work.
>
> There was no dispute that Goodyear had acted reasonably up to the point of
> deemed notification by the doctor. But ignoring such unequivocal medical
> advice meant that Coxall was exposed to the fumes for a further 3 weeks.
> The trial judge ruled that Goodyear was under an obligation of "last
> resort" to remove Coxall from his job.
>
> The company appealed,arguing that it is not for an employer to remove
> empoyees from safe work [i.e. work that is safe for everyone except those
> with an unknown vulnerability to do],let alone dismiss them, just because
> the work does not suit them. It was, Goodyear insisted,for each employee
> to decide on the risk of continuing in the job.
>
> In the Goodyear case the original trial judge said he was not compelled to
> follow earlier authority [notably Withers v Perry Chain Co Ltd [1961 1 WLR
> 1314]. with Goodyear, the company doctor had advised moving the
employee,
> the H & S Manager had agreed, as line manager of Coxall would have had the
> doctor's advice reached him. The failure to follow that advice to move -
> or to ultimately dismiss - Coxall was a breach of the employer's duty.
>
> Goodyear contended that not following 'Withers' would place employers in
an
> impossible position - exposed to personal injury claims if they allow
> employees to keep working, and to damages claims for unfair dismissal if
> they do not.
>
> The Court of Appeal said that conflicting principles could be resolved
only
> by reference to the facts of each case. 'Withers' had not been outdated,
> but it could not be followed to the extent that employers would be immune
> from liability. The principal determinant of whether or not 'Withers'
> applies must be the actual nature and extent of the known risk. Goodyear
> should have discussed with Coxall all available options once the works
> doctor had made his view clear. If he had still insisted on working, the
> case would have been different.
>
> NOTE:
> In 'Withers' the employee returned to work even though she and her
employer
> knew that it might exacerbate her dermatitis. The Court of Appeal said
> then that the company had given her the best work it could, without which
> she would not have worked at all. An employer was under no duty to refuse
> to employ a willing worker because in its view it was not in that worker's
> interests. That would restrict individual freedom. A company's duty was
> restricted to taking all reasonable care for its employees: while a
> considerate employer might try to offer alternative safe employment, it
had
> no obligation to do so.
>
> If any readers are interested in this case, then they should read the full
> judgement by obtaining a copy of the appropriate law report (EWCA 2002 Civ
> 1010) - see your local librarian for details of how to obtain a copy!
>
>
> Happy New Year
>
>
> Dennis M
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