Summary

This page looks at how far OH practitioners may be personally liable under the Equality Act 2010 (EqA), where there is a breach of the Act. Practitioners may also have liabilities in contract law (mainly to the employer), or for negligence, which are not dealt with on this page.

  • A company is normally liable for discrimination by its employees and agents, which may include OH practitioners: see below Vicarious liability of employer.
  • Although the position has not been tested in the courts, it can be argued that personal liability under the EqA should not apply to most OH reports, since the OH practitioner only gives advice. To help mininise risk, practitioners should always consider the possibility of reasonable adjustments, and should not normally give unequivocal advice that someone is unsuitable for the job. See below EqA liability for contents of reports.
  • Aiding an EqA breach can be unlawful under s.112 EqA. This might include for example: an OH professional devising a health questionnaire to go to job applications prior to a job offer, in contravention of s.60 EqA; asking irrelevant health questions in a pre-employment health questionnaire; or giving access to confidential records without consent, which led to the manager’s rejection of the worker because of disability.
  • Under s.111 EqA, inducing someone else to breach the EqA is sometimes unlawful. However, this is a difficult provision, and it is unclear how it would apply to OH practice.
  • External OH providers may also be liable under the EqA, though special considerations apply: see below EqA liability of external OH providers. An external provider is also at greater risk of possible contractual or negligence claims from the employer.

Vicarious liability of employer

The duties under the employment provisions of the EqA are primarily imposed on the employer. The employer is vicariously liable for acts and omissions of its employees in the course of their employment, though the employer has a defence if it can show it has taken ‘all reasonable steps’ to prevent such acts by the employee. (See Who is liable under the EqA?>Liability of the employer). This includes liability for acts of OH practitioners employed by it:

Gomez v GlaxoSmithKline, Employment Tribunal, [2011] EqLR 804
An OH practitioner – without consent – telephoned an employee’s GP, as well as his mother, to inform them that the employee had been sacked, just in case he might be at risk of self-harm. The employer was held vicariously liable for disability harassment. There was no serious threat of the employee’s suicide and confidentiality should have been observed (note that the information did not relate to the employee’s health). More on this case: Harassment.

However, vicarious liability for OH practitioners as employees does not mean the employer is treated as knowing information which is confidential to OH: see Disability: is the employer treated as knowing what OH knows?.

Vicarious liability for agents

The employer is also liable under the EqA for acts of an agent done with the authority of the employer (s.109 EqA). However, ‘agents’ has been interpreted in a limited sense and will not necessarily include external OH practitioners. See below EqA liability of external OH providers.

Individual’s liability under s.110: introduction

A claimant may be able to sue the occupational health professional as well as the employer, under s.110 EqA. This provides that an employee or agent who does something which under s.109 is treated as having been done by the employer and is a contravention of the EqA may also be personally liable under the EqA (see Who is liable under the EqA?>Liability of employees, agents and others).

Accordingly a directly employed OH practitioner can be personally liable as an employee under s.110. This is discussed in more detail below as regards:

An individual OH practitioner practising on his or her own account, if he or she is an ‘employee’ within the extended EqA definition, will be in the same position under s.110 as a directly employed practitioner.

Different considerations apply for external OH providers who are not employees, and who may or may not be an ‘agent’. See below EqA liability of external OH providers.

Apart from s.110, other possible ways in which a directly employed OH practitioner may have personal liability under the EqA are discussed below under S.112: Helping another breach the EqA, and s.111: Instructing, causing or inducing a contravention.

EqA liability for contents of reports

This section of the page applies to OH practitioners who are directly employed (or otherwise treated as employees under the EqA). Though it is also relevant to external OH providers, further considerations apply to them: see below EqA liability of external OH providers.

What does s.110 mean in practice as regards EqA liability of an employed OH practitioner where there is an EqA breach following an OH report?

Diana Kloss’s view:
My advice is that in general OH is not liable under s.110 because the doctor/nurse does not make decisions, merely gives advice.

However, if a human resources manager makes a decision to reject a disabled person acting on OH advice in breach of the Equality Act both employer and manager will be liable.

My tentative view is OH would not also be liable because OH does not make the decision, as does HR. OH does not commit a discriminatory act when it gives advice. The exception may be where OH in effect does make the decision by classifying someone as fit or unfit without giving consideration to whether reasonable adjustments should be made.’

Ways in which an OH practitioner can minimise the risk of being personally liable are:

  • remembering to consider reasonable adjustments, and
  • where possible, avoiding unequivocal advice that someone is unfit for employment.

Taking each of these in turn:

Importance of considering reasonable adjustments

The EqA Employment Code of Practice stresses the particular role of OH practitioners as regards reasonable adjustments on recruitment:

‘… It is particularly important that occupational health practitioners who are employees or agents of the employer understand the duty to make reasonable adjustments. If a disabled person is refused a job because of a negative assessment from an occupational health practitioner during which reasonable adjustments were not adequately considered, this could amount to unlawful discrimination if the refusal was because of disability.’
EqA Employment code, para 10.42

OH professionals should, therefore, always consider whether adjustments would assist and make a note in the records that they have done this, with their conclusions. If a possible adjustment is identified, the worker’s consent should be sought for writing a report to the manager making suggestions about what may assist, without going into the clinical details. In most cases this will cause no difficulty. The OH professional has given advice, which the manager may then decide to accept or reject. If the manager is held to have unlawfully discriminated, the OH professional cannot be held personally liable because he or she has not contravened the EqA. In other words, the manager, not the OH professional, has made the discriminatory decision.

Avoiding unequivocal advice that a worker is unfit

OH professionals should not normally give unequivocal advice to a manager that someone is unsuitable for employment. Instead, they should give information sufficient to allow the manager to make a decision. The report will often need to express a conclusion – eg that a particular person is unfit to drive a train because he can only hear in one ear – but the report should give both sides of the argument. (A tribunal disagreed with the conclusion that a train driver was unfit on these grounds in the Mukadam case (see Health and safety as a justification for disability discrimination: The Mukadam case).

Firm advice from the OH professional that a worker should not be employed based on a discriminatory assumption, for example that people with mental illness are unfit to be police officers, or that blind people are unable to use computers, which is accepted by management without question, might render the OH professional liable for disability discrimination under s.110 or 112 EqA.

If consent if refused

A difficult situation is one where the OH professional is made aware by the worker of a disability, but is forbidden to reveal anything to the manager, even sufficient to suggest adjustments. See on this If consent is refused or withdrawn.

EqA liability as regards medical examinations, phone calls etc

This section of the page applies to OH practitioners who are directly employed (or otherwise treated as employees under the EqA). Whilst it also applies if an external OH provider is an ‘agent’, see below for further considerations EqA liability of external OH providers.

Leaving aside the content of OH reports, there are various ways in which an individual OH practitioner as well as their employer could be liable under the EqA.

One example is harassment by an OH practitioner as in the Gomez case above.

Another example might be a failure to make reasonable adjustments as regards a medical consultation, eg. perhaps failure to arrange a face-to-face meeting if a person with a communication disability would find that easier than a phone consultation.

In these situations the employed OH practitioner is likely to have personal liability under s.110 EqA, as well as the employer being liable.

S.112: Helping another breach the EqA

S.112 EqA provides that a person who knowingly helps another to break the law is liable, unless it is reasonable to rely on a statement by the other that his or her action does not contravene the Act.

The EqA Employment code (para 9.27) gives the example of a manager who would like a job to go to a female candidate and asks a clerical worker to look at the confidential files to let him know the sex of the applicants. The clerical worker who complies with this request would be liable for sex discrimination unless they reasonably believe, for example, the manager’s assurance that his motive is to achieve a balance of sexes in the department and that this is not a breach of the EqA.

An OH professional who gave access to confidential medical records about a disabled person to a manager without consent, in breach of his duty of confidence, leading to the manager’s rejection of the worker because of a disability, might be liable under this section. It is submitted that it would not be reasonable for an OH professional to believe that the breach of confidence was justified. A professional should know better!

Another situation which might give rise to the personal liability of an OH professional is asking health questions pre-job offer, contrary to s.60 EqA, or asking irrelevant health questions in a pre-employment health questionnaire. Paragraph 10.42 of the EqA Employment code gives the example of an employer who requires all successful job applicants to complete a health questionnaire. The questionnaire asks irrelevant questions about mental health, and in answering the questions an applicant declares a history of a mental health condition. If the employer then refused to confirm the offer of the job, the unsuccessful disabled applicant would have a prima facie claim of direct discrimination because of disability. If this happened, the OH professional who devised the questionnaire might also be held liable for aiding a contravention of the EqA, contrary to s.112, unless in reasonable reliance on a manager’s assurance that no unlawful discrimination was involved.

In one case, an employer instructed an OH nurse to administer pre-employment health questionnaires to all candidates short-listed for a senior post, so that an appointment could be confirmed without delay as soon as the job was offered. The OH nurse rightly refused, because this was a breach of s.60.

Pre-employment health screening is discussed in more detail in Pre-employment: Equality Act and Pre-employment questionnaires: Confidentiality and consent.

As regards provision of OH reports, the suggestions under EqA liability for contents of reports above should help minimise risk of liability under s.112 as well as s.110.

S.111: Instructing, causing or inducing a contravention

It is unlawful for a person (A) to instruct someone (B) to discriminate against, harass or victimise another person (C) as regards a protected characteristic, or to cause or induce (or attempt to cause or induce) B to do so. Both B and C have a claim against A. The EqA Employment Code of Practice (para 9.16) gives the example of a GP (A) instructing his receptionist (B) not to register anyone with an Asian name.

On its face s.111 might include an OH practitioner ‘inducing’ a manager to turn down a job applicant, eg. through a report saying the applicant is unfit for work. However, there is an important limitation on s.111 in that the relationship between A and B must be such that A is in a position to commit a ‘basic contravention’ of the EqA in relation to B. Without discussing technical detail, the position is not clear and clarification from the courts will be required. In any event, an individual practitioner is potentially liable under s.110 as discussed above.

EqA liability of external OH providers

This page has so far largely focussed on OH practitioners who are directly employed, and who therefore can be liable as ‘employees’ under s.110. The position would be the same for an individual OH practitioner practising on his or her own account, if he or she is an ‘employee’ within the extended EqA definition.

This section focusses on possible EqA liability of external OH providers. That includes:

  • external firms providing OH services;
  • individual OH practitioners employed by external firms; and
  • individual OH practitioners practising on their own account – assuming they are not an ‘employee’ within the extended EqA definition.

Note that practitioners and companies providing OH services may also have liabilities under their contract or for negligence, which are not dealt with here.

External providers: Liability as an ‘agent’? (s.110)

Liability under EqA s.110 (above) applies to an agent as well as an employee. Under s.109 an organisation is liable for acts of an agent done with its authority (whether or not it knew or approved of the act). S.110 goes on to say that where that act is a breach of the EqA by the organisation, the agent is also liable.

Accordingly if an employer is liable under the EqA for something done by its external OH provider, the external provider may also have EqA liability if it is an agent. However, ‘agent’ has been interpreted in a restrictive way, and an external OH practitioner may be able to argue that they are not an ‘agent’:

Ministry of Defence v Kemeh, Court of Appeal, 2014 www.bailii.org/ew/cases/EWCA/Civ/2014/91.html
In the Falklands garrison, a chef suffered racial abuse by a butcher employed by a subcontractor (Sodexo). The Court of Appeal held the butcher was not an agent of the army, so the claim against the Ministry of Defence failed. It was not appropriate to describe as an agent someone who is employed by a contractor (Sodexo) simply on the grounds that he or she performs work for the benefit of a third party employer (the army)
Note: there is a longer summary of this case at Who is liable under the EqA?>Liability of the employer>Agents.

The EqA Employment Code of Practice para 10.48 gives as an example of agents ‘occupational health advisers engaged but not employed by the employer.’ However, this is not legally binding, and was before the Kemeh case.

Content of OH reports

Personal EqA liability for the content of an OH report is discussed above in the context of employed OH practitioners – see EqA liability for content of OH reports. That gives some arguments and suggestions to minimise the possibility of the practitioner being liable (OH only gives advice, consider adjustments, and normally don’t give unequivocal advice that someone is unsuitable)

As well as helping avoid s.110 liability generally if the external OH provider is an agent, those points should also help the argument that the OH practitioner is not an agent at all, but is acting as an adviser. For example, an external OH provider who simply says in a report that someone is unfit for work is likely to be at greater risk of being seen as an ‘agent’.

EqA liability as regards medical examinations, phone calls etc

If an OH practitioner is an agent of the employer, he or she can have personal liability under s.110 in the same way as one who is directly employed: see above EqA liability as regards medical examinations, phone calls etc.

However, as discussed above the external OH provider may not be an agent. In that case, at least for existing employees, an OH practitioner may still have personal liability under the EqA rules on provision of services – see next heading.

External providers: Provision of services

Another possible way an external OH provider could be liable is under Part 3 EqA, as a provider of services to the public. The Court of Appeal in Kemeh above raised the possibility, without deciding it, that the claimant might have a claim against Sodexo as a provider of services.

EqA claims under these provisions go to the County Court (Sheriffs court in Scotland) rather than the employment tribunal. On the face of it OH services are unlikely to be provided to the ‘public or a section of the public’ (s.29 EqA). However, EqA s.31(5) says that where an employer arranges for another person (eg. an external OH organisation) to provide a service only to the employer’s employees, the employees are to be regarded as a ‘section of the public’, so that the external provider can be liable under EqA Part 3.

For example harassment, or failure by an external OH provider to make reasonable adjustments in the course of health surveillance of existing employees, may be matters that could be taken to a County Court under the EqA. However, it is far from clear whether it would apply to the content of OH reports about employees.

As regards job applicants, it seems unlikely that Part 3 would give a claim to individuals who are not yet employees, given that s.31(5) refers to employees.

Where an external OH company is liable under these rules, an individual OH practitioner employed by the company who actually committed the discrimination could be personally liable under EqA s.110.

External providers: s.112 (helping a breach)

Aiding an EqA breach can be unlawful under s.112 EqA (above). As discussed in more detail there, this might include an OH professional (including an external one) asking health questions pre-job offer contrary to s.60 EqA, or asking irrelevant health questions in a pre-employment health questionnaire, or giving access to confidential records without consent which led to the manager’s rejection of the worker because of disability.

External providers: s.111 (inducing a breach)

Under s.111 EqA (above), inducing someone else to breach the EqA is sometimes unlawful. This could potentially apply to external OH providers. However, it is technically a difficult provision and the legal position is unclear.

Case study

An example of a failure by an OH professional to consider reasonable adjustments:

Paul v National Probation Service, EAT, 2003 www.bailii.org/uk/cases/UKEAT/2003/0290_03_1311.html
Mr Paul had disabling chronic depression. He applied for a job that involved supervising people doing community service. He was offered the post subject to satisfactory health clearance. He completed a health questionnaire, which was reviewed by an OH nurse. She obtained a very brief report from Paul’s GP that merely stated that Paul was likely to be on medication for the foreseeable future, but did not comment on his ability to do the job. The nurse did not examine him, nor did she obtain a report from his psychiatrist – though Paul told her that the GP was new and had hardly seen him, and offered to obtain a report from the specialist. The nurse reported that he was unfit for the job. When Paul complained to the personnel department, he was told that they were relying on the nurse’s view that he was unfit. It was held that the employer was liable under the Disability Discrimination Act 1995 because the nurse had failed to consider reasonable adjustments, such as, for example, providing Paul with a supervisor, or regularly monitoring his health.

Would the OH nurse also be liable? Under s.110 EqA, where an employer is liable for acts of an employee or agent which breach the EqA, the employee or agent is also personally liable. So if she was an employee of the Probation Service, the nurse in the Paul case might have been personally liable under s.110 (which was not in force at the time). She failed to consider reasonable adjustments in the course of her employment for which the employer was vicariously liable.

In fact, the nurse in this case was an employee of Kent County Council, which provided OH services for the employer. Would she be an ‘agent’ so as to fall within s.110? There is no clear answer to this question, as the issue has not been addressed by the courts; however, she might argue that her situation was analogous to the Kemeh case, and therefore she and her employers were not agents (above EqA liability of external OH providers).

 

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