Ethics Guidance for Occupational Health Practice 9th Edition - Book - Page 74
Where consent is refused the occupational health professional will need to
decide whether the public interest overrides their duty of confidence and
whether there is justification to make disclosure without consent.
4.18. If the new information indicates that the worker may have a disability, the
professional should undertake the same procedures as they would have done
had they been aware of the full facts at the time the worker was applying for
the job. Reports in general should not speculate on the reasons for failure
to disclose.
4.19. If the employer asks whether health problems which have
later emerged were disclosed on the pre-employment health questionnaire,
the health professional should reply that the questionnaire is a confidential
clinical record that will not be disclosed without consent or a court order. The
consent of the worker can be sought for release of this information.
Specific legislation and standards for fitness for certain occupations
4.20. Some occupational groups have fitness standards laid down in legislation, for
example drivers, food handlers and seafarers. There are also specific legal
protections for pregnant workers, children, and young people under 18. Other
professions, such as healthcare professionals, are regulated by their
professional organisations. Public sector roles, such as the police and the fire
services, are subject to official government guidance. Legislation is binding and
must be applied, but occupational health professionals must also ensure that
persons with a disability are not discriminated against.
4.21. Under the Health and Safety Act 1974, employers have a duty to ensure, so far
as is reasonably practicable, the health, safety, and welfare of all employees.
This includes conducting suitable and sufficient risk assessments. However, the
Equality Act 2010 requires that disabled individuals are not treated less
favourably unless this can be objectively justified and no reasonable
adjustments can mitigate the risk.
4.22. Each worker or job applicant must be assessed as an individual. This means
that decisions about fitness for work must not be based on generalisations or
assumptions about a health condition or disability. Instead, they must be
grounded in a case-specific, evidence-based assessment of the risks associated
with the particular role in question, and in accordance with relevant law.
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