Employers may need to access recruits’ medical records after Glasgow bin lorry case

What to do when employees fail to disclose health issues prior to employment

The driver of the Glasgow bin lorry who crashed after blacking out at the wheel last December in the city centre killing six people has been arrested following allegations of a driving offence, according to reports.

A fatal accident inquiry has heard that Harry Clark had a history of health issues, including fainting, dizziness and stress, dating back to the 1970s, which he did not disclose to Glasgow City Council during his recruitment. He has since been suspended while an investigation into the allegations takes place.

Employers should ask pertinent medical questions before employment commences and it is usual for new employees to fill out a basic questionnaire providing emergency contact details and disclosing any serious allergies or medical conditions. But considerably more detailed information may be required from those working with children or vulnerable adults, operating heavy machinery, or if driving a vehicle is part of the job. Employers should ensure that contracts and staff handbooks make it clear that failure to disclose such information could be grounds for dismissal.

If an employee is found to have failed to disclose vital information regarding his or her health, this is may be grounds for summary dismissal (in other words, without notice) if, as with the Glasgow case, the employee was in control of machinery that could harm the public. However, if the employment contract and staff handbook does not give the organisation grounds for summary dismissal, the employer would need to adhere closely to its disciplinary procedure or the Acas code of practice on disciplinary and grievance procedures (pdf), when taking any action.

In some circumstances, it may be necessary for the employer to obtain medical reports from the individual’s GP. If a job candidate or current employee refuses access to his or her medical report, it is essential that a full record of the request and the refusal is kept, as this may help protect the employer from any future legal claims. Of course, an employer may well decide to halt a recruitment process at this stage but, again, it is advisable to keep a full record of the reasons behind this decision.

The Access to Medical Reports Act 1988 states that an employer, or insurer, cannot ask a GP for a medical report without the employee’s knowledge and consent. Employees, on the other hand, can ask for a medical report to be amended if they feel it is incorrect or misleading or that certain aspects, which they consider irrelevant, are removed. However, the doctor who has drawn up the report does not have to agree to do this, although he or she is required to attach a note explaining the patient’s views and reasons why the report will not be changed (see the Department of Health’sguidance on access to health records requests – pdf).

Failing to disclose medical history at the beginning of an employment relationship can work against an employee in the event of a claim. In a recent case, an employee who had been dismissed for persistent poor performance brought a claim for unfair dismissal, bullying and discrimination. She alleged that bullying had caused her to become depressed which led to her being prescribed medication which, in turn, negatively affected her performance. During the tribunal hearing it emerged that the claimant had, sadly, a long prior history of taking anti-depressant medication. By failing to disclose this in her original medical questionnaire, filed on her first day, the employer was able to prove that she was a dishonest witness and she lost the case.

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