Unreasoned opinion of occupational health

Employers often seek medical opinions from Occupational Health Practitioners (OH) to help them understand their obligations under the disability provisions of the Equality Act.

I have seen several cases where the OH practitioner had not physically examined the employee or reviewed their medical records/medical history, or considered the legislative test for disability.  Sometimes opinions were very brief and simply stated that the person was not covered by the Disability Discrimination Act (now the Equality Act).

It is disheartening to see a report from a medical practitioner who has formed an opinion without having examined the person in question, reviewed his or her medical notes or read the legislative provisions.  These are basic steps that should be expected.  Without them, there could even be a case of professional negligence.

A recent Court of Appeal case illustrates this point.  An OH professional stated in his report “I do not feel the gentleman is covered under the DDA”.

The court decided that the OH professional had simply expressed an “unreasoned opinion that the employee was not a disabled person within the meaning of the DDA” and that his opinion amounted to no more than assertions of his view that the DDA did not apply or that the person in question was not “covered” by it, or words to that effect.  No supporting reasoning was provided.

The court went on to say: “as the opinions were those of doctors, one might expect them to have been focused on whether, from the medical perspective, the three elements of Section 1 of the DDA were, or were not, satisfied”.

The court said that the OH practitioner made no reference to the test provided in the Disability Discrimination Act, i.e. whether the employee had a physical or mental impairment; that he did but its adverse effect on his ability to carry out normal day to day duties was neither substantial nor long term; or the impairment had no effect on his ability to carry out such duties.  The court stated that in this case “the OH practitioner’s opinion was, with respect, worthless”.  The employee’s barrister asserted that the practitioner had been “negligent” in his conclusion.  

This case indicates the dangers for employers of relying unquestioningly on an occupational health report when deciding whether an employee is disabled.  Employers are advised to review medical evidence themselves before making a decision.  I always advise my clients to instruct an expert in the relevant field of medicine.  For example, could an OH nurse give a credible medical opinion regarding an employee who suffers from schizophrenia?  

It is also important that the medical expert has experience of the Disability Discrimination Act/Equality Act and understands the test that will be applied when determining whether a person is disabled or not.  It is also important to set out a clear letter of instruction that asks the appropriate questions; this means specific practical questions directed to the particular circumstances of the disability.  Answers from a suitably qualified medical professional will provide real assistance to the employer in forming a judgement as to whether the criteria for disability are satisfied. 

Reggie Lloyd
Associate Solicitor - Employment team
[email protected]
01206 217347