Ethics Guidance for Occupational Health Practice 9th Edition - Book - Page 80
If the worker does not consent to this disclosure, the occupational health
professional may simply inform the employer that they are unable to provide
an opinion on the worker’s fitness for work without the worker’s permission.
4.47. Rejection of a job application or dismissal of worker because of health effects
on work, including something arising from the disability (e.g. a poor attendance
record or safety concerns), is lawful provided the employer proves that it is a
proportionate means of achieving a legitimate aim.
Recommending adjustments
4.48. Occupational health professionals should identify adjustments (temporary or
permanent) based upon the worker’s health needs. If the worker is likely to have
a disability as defined by the Equality Act 2010, the employer has a duty
to determine whether they are reasonable including on a long-term basis.
Occupational health professionals should discuss with the worker, to help
define adjustments that will make a difference within their best interests.
4.49. Occupational health professionals should inform the employer if they believe
the worker is likely to have a disability, as defined by the Equality Act 2010 and
their reasoning for this, with the worker’s consent. The OH professional
should acknowledge within their citation that this is their opinion recognising
that is only a court or tribunal that can make a definitive determination under
the Act.
4.50. The duty of reasonable adjustment does not apply where the employer does
not know, and could not reasonably be expected to know, that a person has a
disability which is likely to place them at a disadvantage in the workplace. The
Equality and Human Rights Commission Code of Practice on Employment
2015 suggests that if an employer’s agent or employee, knows of a disability
the employer will not “usually” be able to claim that they do not know of it.,
4.51. However, knowledge held by an occupational health (OH) professional cannot
automatically be shared with the employer, because OH practitioners are
healthcare professionals subject to legal and ethical duties of confidentiality.
Health information known to OH is not deemed to be known to the
employer unless the worker has provided consent for that information to be
shared.
Page | 79
