What if an employee does not disclose a medical condition?
Can I request medical information from my employees?
When requesting the completion of medical questionnaires, the first thing to consider is the reason you need the information. Depending on the nature of the role, an offer of employment may be conditional on receipt of a satisfactory report or medical questionnaire. This could be because you need medical evidence to be sure that a job applicant is physically able to undertake the role or, for the purposes of admission to a health insurance scheme. There might be certain fitness requirements for a strenuous role, or perhaps a need to test your employee’s vision for a role which requires a particular level of eyesight. More generally speaking, medical evidence might be required to test the general health of an applicant for a very senior management appointment in a business.
When can I ask for medical information to be submitted?
You are permitted to request medical information after an offer of employment has been made. It’s not permitted to ask a job applicant about their health before the offer (except in order to make reasonable adjustments for the recruitment process). In general though, the potential employment law issues tend to arise based on what you do with the information once you’ve got it, rather than when you request it.
The first thing to highlight is that medical information is a special category of data for the purposes of data protection law, so you must have a lawful reason for processing the data and ensure that you are complying with data protection laws in respect of the information gathered.
If you do require medical questionnaires to be completed, then be aware that there is no obligation on an employee to disclose information about their health. However, if they do choose to provide it, they must ensure the information they give you is true and not misleading.
What if my employee does not provide information about their condition?
There’s a difference between not providing information and actively lying about a condition. If an employee doesn’t provide information about a health condition, then you might make decisions about their employment without the benefit of that knowledge. Equally though, you won’t be under an obligation to make any reasonable adjustments for a disability if you didn’t know and couldn’t reasonably have been expected to know about their health condition. That said, whilst an employee may not disclose a condition at the outset, if you become aware of one later, a duty to make reasonable adjustments could arise at that point.
If the employee has lied about their condition, you could argue there has been a breach of the duty of mutual trust and confidence and potentially some dishonesty. The employee could be disciplined and, in some circumstances, employment could be fairly and lawfully terminated. The challenge for you as the employer is determining if the lie could justify termination and ensuring your actions are not discriminatory.
What are the risks of me dismissing an employee for not disclosing their condition?
A dismissal on the grounds of an employee’s non-disclosure of a medical condition will create two risk areas for you: a claim for unfair dismissal- which is only possible if the employee has worked for you for at least two years- and a claim for disability discrimination, if their medical condition amounts to a disability.
Termination of employment in these circumstances could be a fair dismissal provided that you follow a fair procedure and you notify the employee at the time of recruitment that a failure to disclose medical information (or any other relevant information), as requested, constitutes grounds for dismissal.
If the reason for the dismissal is something that arises from their medical condition, such as capability for the role, the dismissal could be unlawful discrimination, unless you can justify it, for example by showing that the employee’s medical condition makes them unable to perform the job for which they were employed. However, before dismissing the employee in these circumstances, you must consider your duty to make reasonable adjustments- and go ahead with the dismissal only if there are no reasonable adjustments that would facilitate continuing employment.
Author: Sarah Edwards LL.B (Hons), Senior Employment Law Solicitor at Howarths
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