Witheld Medical Conditions and Work

If my employee doesn’t tell me about mental health issues can I presume they have none or ignore warning signs?

From employees who fail to disclose serious illness or conditions during the induction process to those who withhold diagnoses during the term of employment, employers are left wondering how they can defend themselves against unfair dismissal claims.

DLP are currently monitoring three tribunal claims and five additional live situations where employers were unaware of an employee’s diagnosed sickness or disability (under the Employment Act 2010) until after an employee’s termination on grounds of poor performance (often in a probationary period).

The induction processes were completed accurately by employers and relevant questions asked, yet the employee withheld information about long-standing conditions—some since childhood!

These employees exhibited no signs of excess absence or unexplained leave, no untoward behaviour or other red flags. Yet on termination three separate claims of disability discrimination have been lodged and pursued.

Without prior knowledge of a disability, any employer will defend themselves—and the burden of proof is on the employee to prove awareness—this frightening scenario leaves managers second-guessing themselves at tribunal against well-prepared employees presenting examples of how their health status was abundantly obvious.

DLP advice to employers is not to wait for red flags, but to question any orange flags. Don’t hesitate to call a welfare meeting for events such as a row with colleagues or signs of stress. And offer ample (documented) opportunities for employees to disclose any health or wellness issues.

Simply sending a colleague home for what seems like a one-off concern or work-related headache is not enough. Doing so can be used against you as proof of your knowledge of a more serious condition.

DLP RECOMMENDATIONS

1. Don’t be afraid to talk to staff. And keep signed notes on file of your conversations.
2. Ask questions and keep notes on file (securely under GDPR).
3. Always conduct (and document) Return to Work meetings.
4. Consider ways to support staff such as having a mentor or a buddy scheme.
5. Offer an Employee Assistance Programme.

Should you have any questions feel free to reach out to our help line. DLP advisors are available to answer any questions you may have at 0330 400 4495.

Photo by Thibaut Lemmens.