Ethics Guidance for Occupational Health Practice 9th Edition - Book - Page 81
4.52. This position is supported by case law, including Hartman v South Essex Mental
Health and Community Care NHS Trust (Court of Appeal) and Q v L
(Employment Appeal Tribunal), both of which confirm that the employer cannot
be treated as having knowledge of an employee’s disability merely
because the OH professional is aware of an impairment which in their opinion
is likely to be considered as a disability as defined by the Equality Act 2010.
4.53. The Code also states that the Act does not prevent a disabled person keeping
a disability confidential from an employer. The occupational health professional
should explain that, unless consent is given for limited information to be given
to the manager in order that adjustments may be proposed, the employer will
have no duty to make adjustments. If the disabled person refuses to consent to
any disclosure this should be documented in the notes.
4.54. If an employer has not explicitly asked about the application of the Equality Act,
or in situations that there is no referral by the employer such as preemployment assessment, the occupational health professional should consider
informing the employer that they believe the Equality Act is likely to apply if it
is of benefit to the worker and with worker’s consent.
4.55. Where an employer instructs the occupational health professional not to
comment on the application of the Equality Act, the professional should
nevertheless provide the employer with information that is necessary, lawful,
and ethically justified to support fair and informed decision-making. In such
circumstances, the occupational health professional may outline the relevant
factual elements that underpin the statutory definition of disability—namely
whether there is a physical or mental impairment, whether its effects are
substantial, and whether those effects are likely to be long-term—without
expressly referring to the Equality Act by name. This ensures that the employer
is appropriately informed about functional impact while maintaining
compliance with ethical duties, legal requirements, and the employer’s
instruction.
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