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first_img Previous Article Next Article In handling sickness absence, practitioners need to be watchful of theDisability Discrimination Act.  By KennethMcKeown Sickness absence is a perennial problem for employers. A survey of 300organisations last year showed absence levels were rising with one in fiveidentifying it as a major problem1. It is not just short-term absence that is giving rise to anxiety. The Governmentis becoming increasingly concerned at the number of applications for ill-healthretirement in the public sector. While chief secretary to the treasury, AlanMilburn set up a working party to examine the reasons for this and to makerecommendations. Absence categories The handling of sickness absence is not easy. There are perhaps moremisunderstandings on this subject than any other areas of occupational healthand this, in part, relates to the diverse nature of absence and, more recently,the effect of the Disability Discrimination Act. Reasons for sickness absence are made up of both medical and non-medicalcomponents. It is the relationship between the two that causes much of thedifficulty for OH departments. In 1991 an article in Occupational Health2 proposed classifying absenceaccording to the predominant component. An adaptation of the Acasclassification was used. 1 Absenteeism (non medical) 2 Long-term sickness (medical) 3 Short-term certified and uncertified sickness (medical and non-medical). While these categories should not be regarded as watertight, theclassification does provide a logical approach to the handling of this complexand sensitive issue. However, the OHP has also to consider whether the absentemployee with a significant medical component falls within the provisions ofthe Disability Discrimination Act (DDA). The Act makes it unlawful for an employer to treat a person less favourablyfor a reason related to the person’s present or past disability than they treator would treat a person to whom that reason does not or would not apply. It is not unlawful, however, for an employer to treat a disabled person lessfavourably if they can show that the treatment is justified for a reason whichis both material to the circumstances of the case and substantial. The Act defines a disability as having a substantial and long-term adverseeffect upon that person’s ability to carry out normal day-to-day activities.Under section 6(1), the employer is placed under a strict duty to makereasonable adjustments to the workplace if the disabled person would be”at a substantial disadvantage in comparison with persons who are notdisabled”. One of the common misunderstandings is in the definition of disability. Itdoes not relate to work but to everyday activities. The guidance gives thefollowing advice: “In deciding whether an activity is a day-to-dayactivity, account should be taken of how far it is normal for most people andcarried out by most people on a daily or frequent or fairly regularbasis.” (para C2). ‘Long-term’ interpretation There is a critical distinction between disability as defined by the Actthat relates to normal day-to-day activities and ability to undertake aparticular type of work. This is illustrated in the case of interpretation of”long term”. Another common misunderstanding is the meaning of long term. An impairmentwill be regarded as having a long-term affect if the disability has lasted forat least 12 months and is likely to last for another 12 months. (DDA 1995schedule 1. Para.2.1). In considering this long-term effect the guidance states that account shouldbe taken of the likelihood of the impairment being cured by medical treatment,but if the treatment merely controls the impairment rather than curing it, suchas with epilepsy, the condition still comes within the meaning of the Act,provided it fulfils the other criteria. Past disabilities are also covered. Disclosure of disability The OH practitioner’s report normally relates to fitness to work and not onability to undertake normal day-to-day activities unless they impinge on work. It includes advice on what modifications may help the individual return towork and a prognosis and possible guidance regarding re-deployment. It is inconsidering how this relates to the DDA that potential pitfalls becomeapparent. An OH practitioner’s report on the poor attendance of an employee withmultiple sclerosis may indicate that the individual suffers from a condition ofsuch severity that they will not only affect day-to-day activities but alsowork and are likely to recur over a long period of time. It would be clear to an employer receiving this report that this is adisability within the meaning of the Act. If this employee’s attendance orcapability came into question and they were subsequently dismissed, theemployer would have to show that the treatment is justified. In the case of poor attendance of a well-controlled epileptic clericalworker whose reasons for absence are unrelated medical conditions the positionis more difficult. The occupational health report may indicate that the individual is fit andmakes no mention of the disability as it is not relevant to his fitness towork. If the individual’s attendance was unacceptable and he was subsequentlydismissed, became dissatisfied and make a claim: the manager may well be ableto defend the case as the dismissal was unrelated to the disability. Nevertheless, he might have expected the occupational health practitioner tohave drawn attention to this disability so that when dismissing the employee hemakes it clear that the dismissal is not related to the disability and there ismedical evidence to support this. There are ethical and legal difficulties about the latter approach as itspecifically states in the code of practice para 462, “It will benecessary for employers to consider carefully whether and in what circumstancesthey may need to ask for information about disabilities and if they do the usethey will make of it. Employers should avoid asking about disabilities unlessthere are sound reasons for needing to know”. Risk assessment The occupational health practitioner’s role is much clearer when it comes toother aspects of the Act. The employer is required to make reasonableadjustments. It may look to the occupational health practitioner for guidance asto what adjustments and modifications of the work or workplace are required. This is particularly applicable to a disabled employee bearing in mind thata large number of ill-health retirements relate to musculoskeletal conditions.Forty-one per cent of ill-health retirements in the NHS between 1998 and 1999came under this umbrella3. It is always wise for the occupational health practitioner, when anemployee’s capability is in doubt, to obtain a report from the individual’sdoctor so that an informed medical opinion can be given6. The occupational health practitioner should undertake a risk assessment andrelate the individual’s medical condition to the work that they are expected todo before making a recommendation as to what the most appropriate adjustmentsof the work/workplace that would enable the individual employee to cope. It is important in this respect to remember the role of the OH practitioneris advisory. It is the responsibility of the management to decide on thereasonableness of the modification and if this cannot be accommodated beprepared to justify this if necessary in a tribunal. In the context of current health and safety legislation the circumstancesmay well be expected to include a risk assessment as in Holmes v Whittingham andPorter (See Case Roundup). Finally it is worthwhile reflecting on the dictum in The Lancet in 19794that sickness absence is as much a problem for management as it is for medicineand this is equally applicable in the wider ambit of disability discriminationand the role of both the manager and occupational health practitioner is likelyto increase for some time to come. Dr Kenneth McKeown is OH physician for County Durham and Darlington NHSTrust, South Durham Health Care and Northallerton NHS Trust References 1 Absence An Audit of Cost Reduction Methods (1999) 2 McKeown KD, Occupational Health, April 1991, p116-117 3 East Linsey District Council v Daubney (1977) IRLR 181 4 Sickness Absence in Hospital Staff. The Lancet, ii: p1,278-9 5 Delaney L, Occupational Health, March 2000, p19 Comments are closed. Related posts:No related photos. Handle with careOn 1 Jun 2000 in Musculoskeletal disorders, Personnel Todaylast_img


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