On 22 December 2014, Scotland was shocked by the news that a bin lorry had collided with pedestrians in Queen Street, Glasgow. In the wake of the disaster it emerged that when asked about his health in medical assessment forms as part of his job application, the driver of the bin lorry failed to disclose the fact that he regularly blacked out. In addition, he also failed to disclose his condition on the Large Goods Vehicle (LGV) form required by the Driver and Vehicle Licensing Agency (DVLA).
The Fatal Accident Inquiry that is investigating the incident has heard that the man in question will not face any form of criminal prosecution. The Crown Office, believing the incident to be a tragic accident, made statements in February indicating that no one would be prosecuted. It has affirmed that decision and, this week, the English-based DVLA indicated that it would not seek prosecution either. Family members of the victims, however, have called for a private prosecution.
While the media attention in this case has focused on the possibility (or lack thereof) of criminal sanctions, the incident also raises important employment law issues. The driver of the bin lorry has come to an agreement with his employer, the local council, under which he will remain on 'gardening leave' until the end of the inquiry. The question then, is what sanctions may he face under employment law disciplinary proceedings? How does any punishment for non-disclosure interact with the man's right to privacy in relation to his medical condition? And when can an employer access an employee's medical records?
Disclosure of Medical Conditions in Employment Law
Under the Equality Act 2010, it can be unlawful for employers to ask invasive questions about a prospective employee's health before making a job offer to that person (section 60). However, an employer will be allowed to ask such questions where the requirement is absolutely essential to the job in question or for the interview process for it. Similarly, once a job offer has been made, the employer can ask questions about employee health in order to make reasonable adjustments for the person in question.
Where an employer can bring itself within one of these exceptions care still needs to be taken to ensure the questions asked remain relevant to the nature of the work to be done: simply because an exception applied does not provide the employer with carte blanche to ask any medical questions of the employee that comes to mind.
A breach of section 60 cannot of itself allow for a claim to be raised by an employee. Where there is such a breach, the employee would have a right of complaint to the Equalities and Human Rights Commission who would then be in a position to raise an enforcement action against the employer. However, if a job applicant is unsuccessful and has been asked an unlawful question about their health, this can be strong evidence to support a direct discrimination claim.
Employer Access of Medical Records
Much of the consternation in the case of the Glasgow bin lorry crash has come from the fact that the local council did not have access to the driver's medical records. Medical practitioners knew that the man had a history of dizziness and fainting, and it has been suggested that his employers would not have given him a job as a driver had they had access to this information.
Under the Access to Medical Reports Act 1988, an employer can access medical records from a medical practitioner, if they are in connection with the employment itself. However, under section 3 of the 1988 Act, the employee must be notified of the employer's intention to access the records and must give his or her consent to such access. Moreover, the employee must be told that they are permitted to withhold consent. Alternatively, an employee can consent to the release of his or her medical records subject to prior sight of them before the employer. After seeing his or her own medical records, an employee can then revoke consent.
Importantly, however, there is no situation where an employer can access an employee's medical records without an employee's consent. The system is essentially one of trust and obligation rather than verified checks. This arguably reflects traditional understandings of the employment contract which are based on notions of trust.
Sanctions for Failure to Disclose
If an employee fails to disclose medical information that is considered essential to the job, this may amount to misconduct. As such, there may be a risk of dismissal if the consequences of that non-disclosure are serious.
This will be particularly clear if the employee has been asked a direct question on the matter and has failed to answer that question truthfully, as this is essentially a misrepresentation. Such a violation of the employment contract may be covered by the common law tort of deceit (see, for example, Derry v Peek 1889), though in such a case the very high fraud standard must be met.
Preliminary Conclusions
Employers face a difficult challenge when seeking information on the medical conditions of their employees. On one hand, the new duties on employers under the Equality Act 2010 require them to be careful about the type of information they request from their employees about their health. In this regard, they must give careful consideration to the relevance of the information to the particular job and the stage at which they seek it. On the other hand, however, questions in medical questionnaires must be drafted with sufficient precision if employers wish to take any disciplinary action in relation to non-disclosure of important medical information. As such, at present employers are forced to tread a very delicate line when drafting medical questionnaires.
Turning to the issue of employer access of employee medical records, the European Court of Human Rights has made it clear, in cases such as KH v Slovakia and Radu v Republic of Moldova, that these issues engage the right to private and family life under Article 8 of the Convention. However, interferences with rights under the ECHR can be balanced with other considerations if they are necessary to pursue a legitimate aim and otherwise proportionate. As such, it is far from clear that the Convention itself prohibits employer access of medical records in all circumstances. The concerns underlying the laws in the UK in this regard are therefore ones of policy and ethics. Employees may be unwilling to seek medical help or cooperate fully with medical professionals if they are worried about subsequent disclosure of their records. The Glasgow bin lorry tragedy, however, reminds us of the potential costs of relying on a system of trust in relation to medical disclosures.
