Occupational Health – What Does The Employer Know?

Does your organisation provide its employees with access to an Occupational Health Service (OHS)? It is possible that employees will disclose to the OHS, directly or indirectly, that they have a health condition which might amount to a disability under Equality Act 2010. This could, in turn, trigger the employer's obligation to make reasonable adjustments, and to ensure that the employee is not discriminated against because of their disability. This might be the case even if the OHS does not share details of the employee's disability with the relevant people in the organisation.

The circumstances under which the OHS is engaged, and the ways in which the disclosing employee consents to their confidential information being shared, could result in the OHS's knowledge of the disability being attributed to the employer. Accordingly, the employer would be unable to argue that it was unaware of the employee's disability in a potential claim for disability discrimination. This is concerning in the absence of an adequate system for information sharing.

In-house or external OHS?

A key distinction is whether the employer has its own OHS, or whether it engages an independent OHS. If it engages an independent OHS, it is unlikely that the information disclosed by employees only to the OHS will be deemed knowledge of the employer. This is even less likely if the terms under which the independent OHS is engaged expressly state that the workers at the OHS are not acting on the employer's behalf. However, if the employer has its own in-house OHS and employs people to work within it (such as an in-house occupational health nurse), it is more likely that the OHS's knowledge will be attributed to the employer.

A good OHS is likely to give an opinion to the employer as to whether or not an employee is disabled within the meaning of the statutory definition. This can be helpful for employers to understand their likely obligations in respect of the employee in question. However, if an employer 'blindly' accepts the OHS's opinion that an employee is not disabled, despite knowledge or facts suggesting that the employee is in fact disabled, it is unlikely to be able to rely on the OHS opinion as evidence that it was unaware of the disability.

Level of OHS expertise

The expertise of different OHS providers can be wide ranging and this should be factored into the employer's decision when selecting which OHS to engage. Importantly, unlike doctors and nurses, some professionals that work within an OHS, such as counsellors, are not always subject to registration and regulation. Employers should be aware of this, as it is a potential area of concern not only in respect of their employees but also in respect of any others who may utilise employer organised OHS services. For example, in the education sector it is common to engage nurses and counsellors with whom students can confide in, increasingly in relation to mental health problems. Suicides in higher education institutions are the subject of particular focus recently, so education institutions should ensure that they carefully consider the OHS that they choose to engage and the way in which they choose to engage it.

Tips for protecting your organisation and ensuring individuals receive the support, including reasonable adjustments, which they require:

• You may have sought, and received, consent from the individual authorising the OHS to share their confidential information with you. If so, you must ensure that there is an effective system in place to disclose the facts of a potential disability to the relevant individuals within the organisation (for example, members of the HR team). Those individuals should then speak to the employee further and, where necessary, consider (and taking into account occupational health advice) making reasonable adjustments.
• If the starting point is that information will not be shared with the employer, to avoid knowledge held by the OHS being attributed to the organisation, employers must clarify in writing that the disclosures made by the individual to the OHS will be confidential and will not be shared with the employer. Specific consent to share information can be sought from the individual as and when necessary.
• If an OHS shares an opinion as to whether an individual employee is disabled, follow this up with practical questions to the individual and consider other available information to allow the organisation to make its own informed decision as to whether they are disabled within the meaning of Equality Act 2010.
• The organisation may require counsellors engaged within its own OHS to be registered with the British Association for Counselling and Psychotherapy (BACP). Consequently, they must adhere to an ethics framework. As a minimum alternative to BACP registration, we would recommend making sure they are insured.
• Finally, Occupational Health professionals can become members of the Society of Occupational Medicine. Employers may consider requiring individuals within its OHS provider to become members, thereby giving them access to additional learning and support.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.