OH provider strongly criticised by Tribunal
An OH provider and an employer have been criticised by an Employment Judge. Employment tribunals expect employers to make reasonable adjustments to support employees who may have a disability. Claims for Disability Discrimination often succeed because an employer has failed to make adjustments to a role, to try to accommodate a disability.
Very rarely, occupational health professionals, as well as employers, are criticised by Employment Tribunals. One recent case highlights the risks to employers of relying on poor quality occupational health advice and failing to make even basic adjustments.
In a judgement published in December at Havant Justice Centre, an employment tribunal criticised an employer, a professional services and facilities provider, for failing to consider basic adjustments or redeployment to an alternative role. An occupational health provider also came in for criticism too.
The judge, Employment Judge Rayner, criticised the employer for ignoring a potentially suitable role for redeployment and apparently leaving the employee in limbo for months. This was despite repeated requests from the employee for assistance.
A decisive judgement
The tribunal heard that the Claimant, Mr Christopher Lee, was employed as a security guard. He began to have problems with his eyesight in October 2020. By January 2021 he had lost all sight in one eye and most of his sight in the other.
He was quickly diagnosed with a condition affecting the optic nerve, which was permanent and irreversible. He became registered blind in the same month.
In early March 2021 the employee wrote to his manager asking to return to work and inquiring about what adjustments could be made to support him. The Judge noted that until that point no effort had been made by the employer to refer the employee to occupational health or seek any advice about what he was capable of doing.
The Judge said “There is no evidence that the respondent had any practices for managing or assisting an employee who became disabled during the course of his employment”. This highlights that, at the very least, a tribunal would expect an employer to have
basic policies and procedures around sickness absence management.
Occupational health become involved
At the end of March Mr Lee met with an occupational health adviser, a specially qualified nurse. By the end of April he had still heard nothing back from occupational health or his employer. Arrangements were then made for Mr Lee to see an occupational health physician, which happened on the first of July 2021.
In August, Mr. Lee raised a grievance, stating he had no welfare checks, that he had to “initiate all contact with management” and had not been contacted by HR to discuss possible redeployment or adjustments at any point.
The report from the occupational health physician arrived and said that Mr. Lee was “not fit to return to work [owing] to loss of sight and was unlikely to return for the foreseeable future”. It also added “There are no adjustments that I can suggest facilitating this.”
Occupational health criticised
The Tribunal criticised the occupational physician’s report, highlighting that it “did not at any stage carry out any sort of assessment or review of what the claimant could do”. The doctor was not on the GMC Specialist Register and is not an Accredited Specialist in Occupational Medicine, although there is no law preventing this from happening.
The Tribunal went on to say “We would expect an OH practitioner to be fully aware of a range of assistive technologies, including voice recognition technology and read back facilities, which may have assisted the claimant to carry out some form of work using computer screens.”
The judgement also went on to say “The expectation appeared to be that the Claimant would need to demonstrate that he could do the job in spite of his disability, rather than considering whether any role could be adjusted for the claimant as a disabled person.”
The employer rejected the grievance raised by Mr. Lee in September and he later received a letter dismissing him from his job. The letter said the employer could offer “no further support in returning to work”.
The tribunal recorded being “struck by how little effort managers had made to retain the services of Mr Lee”.
The Tribunal then went on to say that “what happened is that the managers only took steps to find a job that a blind employee could do, rather than trying to find a job that could be adjusted so that Mr Lee could do the role.”
They also said “In this case that would have included some contact with one of the many organisations providing support to the blind and partially sighted, as well as some form of workplace assessment, to consider what the claimant could do, rather than focusing on what he could not do.”
Occupational health advice
As the Tribunal noted, the guidance from occupational health could have highlighted the many software applications that are available to support visually impaired people. It is, after all, a common adjustment that is frequently recommended by occupational health professionals.
Signposting managers towards organisations which could provide additional support, such as the RNIB, Blind in Business and Access to Work would also be expected, which was also highlighted in the judgement.
The potential risks associated with relying on occupational health advice from those who are not Accredited Specialists in Occupational Medicine (the “MFOM”/”FFOM” qualifications) are apparent in this case. This article explains the different
occupational health qualifications and what the letters after each clinician’s name mean for employers.
A remedy hearing is to be scheduled for Mr. Lee and the award, in our opinion, is likely to be high.
An important note
It’s important to note that the content of the report arising from an assessment is often linked to the quality and content of the referral form requesting the assessment. The clinician can only answer the questions they’ve been asked, so there is a responsibility for the employer to appropriate questions. It is important to say that we haven’t seen the original referral form.
It’s also important to say that we did not approach the clinicians involved in the case for comment, so they have not been able to reply to the criticism’s made by the Tribunal in this article.
About Occupational Health Assessment Ltd – a nationwide occupational
health provider
Occupational Health Assessment Ltd provides rapid access to expert occupational health support for businesses across
the United Kingdom. Appointments are available nationwide within two days.
With a unique occupational health assessment service, night worker health assessments, fitness certifications and access to clinics in Belfast, Birmingham, Bradford, Brighton, Bristol, Cardiff, Coventry, Derby, Edinburgh, Glasgow, Hull, Leeds, Leicester, Liverpool, London, Manchester, Newcastle, Northampton, Nottingham, Plymouth, Portsmouth, Reading, Sheffield, Southampton, Stoke, Surrey and more, the business provides high quality, expert medical advice.
Please contact us for further information or assistance.