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Not Declearing Disability

Not Declearing Disability

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We have recently offered a job to someone who gladly accepted and contract has been issued and signed but just before her start date she indicated that she has a disability her disability would have an effect on her health and ability to carry out the role. We have had to defer her start date pending when we get full medical report from her GP, for us to know if her disability is covered under the equality act.

I am frustrated now because the GP is not responding to our entire request and the employee is eager I really need your advice on this one

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By heathbuck
06th Jul 2012 10:55

She does not have to declare a disability - this is to prevent employers evading the hiring of disabled workers. In fact, I would be very wary of even asking about disabilities before hiring someone, as the question may look discriminatory.
Being registered disabled is not an employment issue, if you are registered disabled it indicates you are more likely to be considered disabled for employment purposes, if you're not registered disabled it doesn't indicate anything as many disabilities are unseen.
You should consider does she have a "long-term physical or mental impairment that might have an adverse effect on her ability to carry out day to day activities"?
Your answer to this will tell you if she is disabled. What you need from either her, her disability advisor, or her GP is not a statement of whether she's disabled (they might use the wrong disability test - use the one above), but a statement of what effect her condition has on her ability to work.
If she is disabled, then you need to consider reasonable adjustments to enable her to do her job. Your judgement on what reasonable is, is what Tribunals are fought over. She should be an expert in her disability, so the easiest starting point is to ask her what adjustments are needed? (particularly if you're a smaller organisation with less expert resources). Make the reasonable adjustments requested, do not make unreasonable adjustments (again, the word "reasonable" is Tribunal worthy).
If reasonable adjustments are not possible to enable her to perform the job, and she has started employment, the usual course would be to look at redeployment opportunities. In your particular circumstances, if reasonable adjustments are not possible to enable her to start the job, then I would assume she had no intention of fulfilling the contract of employment. An implied term of any contract of employment is that you intend on fulfilling your side of it.
On this basis, I would write to her and say "on the basis reasonable adjustments that would enable you to fulfil your contract of employment were not possible, we have to assume that you had no intention of fulfilling your contract of employment. On this basis I consider the contract null and void."
Its worth taking employment law advice on the last part. If she's signed the contract, then usually there is a contract so you would need to give contractual notice, however I believe that if she never intended to fulfill the contract, signature or no signature the contract was never valid (a contract of employment is more than just a piece of paper).

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By William David
06th Jul 2012 12:13

Heathbuck is absolutely right. There are,however,some caveats around disability and other medical information being sought ny the potential employer,inter alia the Equality Act 2010. I have a short free briefing and will gladly send you a copy-e mail me at [email protected]

Additionally, the case of Christine Laird v Cheltenham Borough Council is very useful in highlighting key learning points for employers in order to avoid the elephant traps you describe.

Regards

William

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By jperrett
11th Jul 2012 12:35

Hi Tobi,

Have you considered referring her to Occupational Health rather than relying on a GP report ? Even if you don't have a regular contract there are a number of companies who will arrange to see her and provide you with recommendations.

John 

 

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