This morning BBC Radio Scotland’s “Call Kaye” programme discussed how open people are about their health. Is it a private matter? Or is it good to talk?
The discussion was prompted after the death of Gene Wilder yesterday. Wilder is most famous for his role in Roald Dahl’s "Willy Wonka and the Chocolate Factory". In a statement released by his family it was revealed that Wilder had died due to complications from Alzheimer’s disease. He had chosen not to disclose his illness publicly.
As specialised employment lawyers we at Thompsons are regularly asked by employees what they do and do not have to enclose to their employer about their health.
In general, there is no obligation on an employee to tell their employer about a health condition. However, you would be expected to tell your employer if your health condition may put at risk other employees, for example if you were suffering from an infectious condition such as chicken pocks or shingles.
You would also be expected to advise your employer if your health condition impacted upon your ability to carry out your job. For example, if you were employed as an HGV Driver and could not get an HGV licence due to suffering from diabetes. You also may be expected to advise your employer if you were taking medication which adversely affected your ability to do your job, operating machinery is a common one.
When applying for a job, the Equality Act 2010 expressly forbids employers asking health questions designed to screen out job applications. The employer cannot ask job applicants about their health or disability until they have been offered a job. There are certain exceptions to this rule: if an employer needs someone with a specific protected characteristic – a support worker supporting rape victims – for example.
Once in employment an employer may have certain obligations to staff with health conditions. In order for the obligations to have effect the employee must be able to show that their condition amounts to a disability. Under the Equality Act a disability means “a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities”.
You are also covered by the Act if you have a progressive condition like HIV, cancer and multiple sclerosis. For these conditions you are protected by the Act on diagnosis of the condition.
If your ill health falls under the category of a disability the employer cannot treat you differently because of your disability. This is direct discrimination.
Under the Act the employer are also under a duty to make reasonable adjustments. This is to ensure that disabled people can access jobs, education and services as easily as non-disabled people. Such adjustments can be positive in nature and in some cases can extend to treating disabled people more favourably than non-disabled persons.
The duty to make reasonable adjustments applies in three categories:
1. When a particular policy, criterion or practice puts a disabled person at a substantial disadvantage when compared with persons who are not disabled. For example – the requirement to be fit to undertake all the duties of your post.
2. Where a physical feature puts a disabled person at a substantial disadvantage when compared with persons who are not disabled. For example – a wheelchair user who is unable to enter to the workplace due to steps leading to the front door.
3. Where a disabled person, but for the provision of an auxiliary aid, be put at a substantial disadvantage when compared with persons who are not disabled.
A common type of discrimination related to health conditions is discrimination arising from disability. This occurs when you are treated differently because of something connected with your disability. For example, an employee dismissed due to being unable to meet the absence management target set by your employer. If you are unable to meet this due to your disability this may be discrimination.
However an employer can show that there is a good reason for this then it will not be discrimination arising from disability. This however is for the employer to show.
On “Call Kaye” one employee who telephoned told the show that since he had disclosed his mental health condition to his employer fellow employees and managers had been making comments to him such as “man up” and “just get on with it”.
Such comments can be classed as Harassment. This when an employee is treated in a way that makes them feel humiliated, offended or degraded. This often includes calling names and being offensive due to someone’s disability. Harassment can never be justified.
Finally, there is Victimisation. This is when an employee has been treated differently on the grounds that they have made a complaint of discrimination under the Equality Act. For example, if an employee is denied promotion due to a complaint they have made regarding disability discrimination.
Therefore, if you do have a health condition and it affects your ability to do your job you should discuss this with your employer. Failure to do so may result in disciplinary action being taken against you up to, and including, dismissal.
If the condition meets the test for disability under the Equality Act you are protected by the provisions relating to disability discrimination.