Many offers of employment within schools are conditional upon the satisfactory completion of a medical assessment. This is a sensible precaution as it allows the employer to be aware of any underlying conditions that may affect the individual’s ability to do the role, as well as provide guidance on reasonable adjustments that might be necessary. However, what should you do when you’re made aware of a condition that could affect an individual’s ability to do the role. For instance, suppose the medical assessment states that an individual who has applied for the role of a PE teacher has an acute back issue. What should you do in these circumstances?
The case of Corry v Merseyrail Electric, whilst not school related, does give us some useful guidance. In this case, Mr Corry applied to become a Station Assistant. The role required him to help passengers on and off the train, carry out security checks and work by himself at night. As part of the recruitment process he undertook a medical assessment with Merseyrail Electric’s Occupational Health specialist. The assessment stated that he was fit to work with certain restrictions, namely that he should not work alone or be allowed to work trackside.
Often schools (and employers in general) mistakenly believe that they have to implement the advice they receive from Occupational Health. However, it may be completely impractical to do so. Indeed, in the Corry case, the organisation concluded that the cost and practical problems of implementing the adjustments made them unreasonable: 90% of the job involved working alone or working trackside. Unable to resolve the issue, the offer of employment was withdrawn and Mr Corry raised a disability discrimination claim.
The tribunal reviewed the facts and found that the employer had acted reasonably: it had taken its decision conscientiously and in good faith; it had explored possible adjustments and concluded that these were not feasible. The employer had no option but to withdraw the job offer.
Mr Corry also claimed that the organisation should have implemented certain adjustments to his role, namely: he be accompanied at work by a colleague, to avoid lone working; he be deployed in a large station, where there would be more staff and passengers to assist him, should he have a seizure; and the employer have extensive CCTV coverage of the station.
The tribunal rejected his suggestions and concluded that having a colleague with him at all times would mean doubling-up on recruitment. It was not reasonable for the employer to recruit a chaperone at an additional staffing cost. In addition, deploying him in a large station would not necessarily reduce the risk, as he would still have to work alone or trackside at certain times. The employer could not rely on other staff always being there or on passengers to assist him. The tribunal also concluded that not all of the stations had CCTV coverage. Moreover, CCTV coverage would only mean that an incident would be observed with action only possible after the event had occurred.
What does this mean in terms of our applicant with the acute back condition? One of the first steps would be to meet with the individual to discuss the initial health assessment report. At this stage it would be a good idea to obtain further Occupational Health advice to find out more information about the condition. For instance, how the condition presents itself; any reasonable adjustments that can be made; whether it’s to be considered a disability; if it is a long term condition and whether the individual is receiving any treatment; and the likely prognosis of this treatment.
Once you have the report, it would be a good idea to meet again with the applicant to thoroughly explore the contents of the occupational report. At this point, you should genuinely consider whether you can implement the reasonable adjustments that have been suggested by the Occupational Health specialist. You’re advised to focus on what the applicant can do rather than focus just on what they can’t. It’s always a good idea to document your rationale in detail at this point in case your decision is called into question at a later stage. By doing so, you will be able to demonstrate that you carefully considered the matter in good faith.
The appropriate actions will depend on the specifics of each case and, hopefully, the school will be able to accommodate any recommendations made by the Occupational Health specialist. However, as the Corry case has shown, you will be able to consider withdrawing offers of employment on health grounds provided you have taken the appropriate steps before you reach the decision to do so.
If you have an HR issue that you need support with, please don’t hesitate to contact us.
