Ethics Guidance for Occupational Health Practice 9th Edition - Book - Page 75
Rejection of a worker on vague ‘health and safety grounds’ will be unlawful
unless backed by evidence that there is a specific legislative requirement or that,
even with reasonable adjustments, the worker cannot be safely employed.
4.23. Occupational Health Professionals must undertake a competent, and
individualised assessment that considers the specific duties of the role and the
individual’s capabilities. Blanket exclusions based on diagnosis alone should be
avoided, unless supported by robust evidence that the condition poses an
unmanageable risk in that specific context e.g. uncontrolled epilepsy and
driving. Reasonable adjustments should be explored and recommended to
enable the individual, where possible, to perform the role safely. The rationale
for occupational health advice should be documented to ensure that it is a
proportionate means of achieving a legitimate aim, such as preventing serious
harm, and that all less discriminatory alternatives have been considered.
4.24. While occupational health professionals provide clinical and risk-based based
advice, the tolerability of residual risk is ultimately for the employer
to determine, taking into account their legal obligations, operational context,
and internal policies. If there is clear evidence that the impairment would
breach statutory requirements or contravene the employer’s health and safety
or employment policies, the occupational health professional must advise
accordingly.
4.25. Where a worker has obtained a licence from a licensing authority (e.g. Driver
and Vehicle Licensing Agency, Civil Aviation Authority etc.) to perform their
work, there is commonly a statutory duty on the worker to disclose to the
licensing authority a health condition which affects their ability to operate
safely; breach of this duty is a criminal offence.
4.26. The occupational health professional who becomes aware that a worker
is failing to disclose a relevant health condition to a licensing authority, and
there is a clear risk to others, may reveal confidential medical information to the
licensing authority, without consent if it is in the public interest.
4.27. If there is a serious risk to others, they have an ethical duty to do so but should
first discuss the matter in confidence with a senior colleague, or medical
indemnifier, and should warn the worker that they intend to report them if the
worker does not do so themselves. A note should be made in the occupational
health record of these intentions, and the reasons for them.
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