Hi Catherine
Another case to consider is Wilcox v Birmingham Cab Services Limited UKEAT/0293/10/DM
http://www.bailii.org/uk/cases/UKEAT/2011/0293_10_2306.html
This was a lady who refused to see OH and so the fact that she might be disabled under the DDA could not be established. It is very similar to your case and backs up your opinion.
The summary is-
The ET held that R did not know and could not be expected to know, before it received Mr Briscoe’s report, that C was disabled. C appealed and argued that the ET’s finding that R could not be expected to know about C’s disability was perverse. The EAT rejected the appeal. Although the EAT described itself as troubled by the conclusion that R did not have actual or constructive knowledge after receiving the GP’s report it upheld the ET’s decision. Even though R could have constructive knowledge when there was no precise diagnosis the question of whether constructive knowledge should be imposed was a question of fact. The ET was entitled to find that R did not have actual or constructive knowledge until it was able to obtain “authoritative medical advice”, not least because in this case it was difficult to disentangle the effects of any mental impairment from C’s unhappiness about her working conditions. The finding that R did not know of C’s disability also led the EAT to reject the direct discrimination appeal. Finally, the EAT upheld the ET’s finding that the claimed adjustment was unreasonable.
Karen
-----Original Message-----
From: [log in to unmask] [mailto:[log in to unmask]] On Behalf Of Catherine Mackay
Sent: 27 February 2014 22:44
To: [log in to unmask]
Subject: Re: [OCC-HEALTH] Tribunals and refusing of OH support
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]
>
> ******************************** Please remove this footer before
> replying.
>
> OCC-HEALTH ARCHIVES: http://www.jiscmail.ac.uk/lists/occ-health.html
> [4]
>
> CONFERENCES AND STUDY DAYS:
> http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH [5]
> ******************************** Please remove this footer before
> replying.
>
> OCC-HEALTH ARCHIVES: http://www.jiscmail.ac.uk/lists/occ-health.html
> [6]
>
> CONFERENCES AND STUDY DAYS:
> http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH [7]
>
> 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
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 intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error, please notify catherinemackay@cm-com
Views or opinions presented in this email are solely those of the author and do not necessarily represent those of CMK Health at Work Ltd. The recipients should check this email and any attachments for the presence of viruses. CMK Health at Work Ltd scans emails for viruses but accepts no responsibility for any damage caused by any virus transmitted by this email.
-------------------------
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 intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error, please notify catherinemackay@cm-com
Views or opinions presented in this email are solely those of the author and do not necessarily represent those of CMK Health at Work Ltd. The recipients should check this email and any attachments for the presence of viruses. CMK Health at Work Ltd scans emails for viruses but accepts no responsibility for any damage caused by any virus transmitted by this email.
********************************
Please remove this footer before replying.
OCC-HEALTH ARCHIVES:
http://www.jiscmail.ac.uk/lists/occ-health.html
CONFERENCES AND STUDY DAYS:
http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH
********************************
Please remove this footer before replying.
OCC-HEALTH ARCHIVES:
http://www.jiscmail.ac.uk/lists/occ-health.html
CONFERENCES AND STUDY DAYS:
http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH
|