Dear Karen
Thank you for this interesting case law.
I had a similar case recently where the employee was having workplace
issues, he was involved in a disciplinary procedure and he advised that
he had a substantial mental health condition. His description of his
medical condition was unclear and he was unwilling to consent for
disclosure to obtain medical evidence. Effectively, he was afraid that
his diagnosis would affect his employment; he had not disclosed his
mental health diagnosis in his pre-placement. However, I advised that
there were potential consequences to withholding consent to agree to
obtaining a Specialist/GP report for medical evidence, i.e. that it
appeared likely from what he disclosed in confidence that there was an
underlying medical condition which could likely be considered disabling
within the scope of the EqA; that adjustments/accommodations could
likely/possibly be recommended to the employer, but, without the medical
evidence,OH could not recommend since the medical information was
unclear, the employer would, therefore, not know, and could not
reasonably be expected to know, that there was an underlying disabling
medical condition, and the employer could, therefore, proceed without
the required information. The consent was made available in due course.
‘Lairg versus Cheltenham Borough Council’ is an interesting case in
respect of pre-placement disclosure.
Best wishes
Catherine Mackay
On Thu, 27 Feb 2014 19:48:39 -0000, Karen Coomer wrote:
> Hi Tim
>
> Cox and Essex County Fire & Rescue is a very recent case where a chap
> refused consent to release medical reports from his specialists to
> OH,
> so he was dismissed due to lack of information related to his
> condition.
>
> http://www.bailii.org/uk/cases/UKEAT/2013/0162_13_2810.html [1]
>
> Summary as follows
>
> The EAT has upheld a Tribunal's decision that the employer did not
> know, and could not have reasonably been expected to know, that the
> employee was disabled, where the medical diagnosis had not been
> definitive and the employee had withdrawn consent for his medical
> advisors to provide information about his medical condition to his
> employer's occupational health advisors.
>
> Karen
>
> FROM: [log in to unmask] [mailto:[log in to unmask]] ON
> BEHALF OF Tim Ellis
> SENT: 27 February 2014 15:05
> TO: [log in to unmask]
> SUBJECT: [OCC-HEALTH] Tribunals and refusing of OH support
> SENSITIVITY: Confidential
>
> Dear Collective knowledge J
>
> Is anyone aware of any more recent tribunal cases that referenced or
> concerned management proceeding to dismiss an employee who had
> refused/ declined to engage with OH?
>
> The FOM Ethics guidance references the case O'DONOGHUE VS. ELMBRIDGE
> HOUSING TRUST [2004] EWCA CIV 939 where Ms O'Donoghue refused to sign
> a consent form or meet with OH, so the employer proceeded without the
> benefit of OH medical evidence, despite her submitting MED3's signing
> her off... wondered if there were any great ones since?
>
> Kind Regards,
>
> Tim Ellis RN, SPCHN (OH), PgDip OH
> Occupational Health Advisor
>
> Edward Herbert Building (EHB)
>
> Loughborough University
> Leicestershire
> LE11 3TU
>
> Telephone: 01509 222851
>
> Mobile: 07917 053340
>
> Fax: 01509 222852
>
> http://www.lboro.ac.uk/admin/hse/occupational/ [2]
>
> http://www.lboro.ac.uk/service/health-wellbeing/ [3]
>
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> http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH [5]
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>
> Links:
> ------
> [1] http://www.bailii.org/uk/cases/UKEAT/2013/0162_13_2810.html
> [2] http://www.lboro.ac.uk/admin/hse/occupational/
> [3] http://www.lboro.ac.uk/service/health-wellbeing/
> [4] http://www.jiscmail.ac.uk/lists/occ-health.html
> [5] http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH
> [6] http://www.jiscmail.ac.uk/lists/occ-health.html
> [7] http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH
--
Catherine Mackay
Director & Health at Work Specialist
RN MSc (Work Psychol.) Grad.IOSH
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-------------------------
Catherine Mackay
Director & Health at Work Specialist
RN MSc (Work Psychol.) Grad.IOSH
l: +44 131 445 4448| m: +44 7956439163
e: [log in to unmask]
w: www.cmkhealthatwork.com
This email, and any files transmitted with it, are confidential and
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