The Equality Act says that employers cannot be expected to make adjustments to the workplace if they did not know – or could not reasonably have been expected to know – that their employee had a disability.

In a recent case, an employee claimed he had been suffering from bi-polar disorder and stated that he had some evidence to support that.  The employer correctly referred him to its occupational health adviser, who wrote to the employee’s GP and his consultant. However, because the employee had instructed them not to pass information to his employer, neither replied!  The employee later explained that he had issued this instruction on the advice of his personal injury lawyer.

The employment tribunal decided that the employer had asked the right questions and was justified in concluding that the employee did not have a disability.  The tribunal took particular note of the fact that the employee had withdrawn his consent for his GP and consultant to provide information to the employer’s occupational health service.

Indeed, if the employee’s personal injury lawyer had advised him to withdraw consent for his GP and consultant to provide information, this was rash advice.  An employee is required to cooperate with his employer in these circumstances and should not unreasonably refuse to disclose medical records or undergo a medical examination with a view to ascertaining the type and extent of any medical condition.  In the case of Wilcox v Birmingham CAB Services the tribunal decided that the employer could not reasonably have been expected to have known that the employee was disabled until a consultant’s report had been received.

The employer in this case acted correctly and reasonably.  This case is a reminder to employees that they must comply with any reasonable requests from an employer regarding their medical information.

As an aside, it also illustrates that those who do not specialise in employment law should be cautious about giving employment advice.  If the reported facts of this case are correct, this employee could consider making a negligence claim against his personal injury lawyer. 

For more information, please contact Reggie Lloyd on 01206 217347 or reggie.lloyd@birkettlong.co.uk.