OH plays a key role in case management, including disability adjustments, and it is imperative to reflect on best practice
Often within occupational health it will be your expertise as a practitioner and leader that decides on a course of action. This makes it imperative to be regularly reflecting on your practice, knowledge and evidence base. Here, OH advisor Ruth Meredith outlines a valuable reflective approach she recently undertook around OH case management and disability adjustment.
I am an experienced occupational health (OH) advisor, having worked over the last 13 years in areas ranging from in-house in local government and manufacturing to private companies with a similarly broad clientele. Some roles have been largely focused on statutory health surveillance with some case management and others solely case management. They have included varying degrees of focus on absence reduction.
About the author
Ruth Meredith MSc SCPHN (OH) RN is a senior occupational health advisor/team leader at Smart Clinic (run by APL Health)
My case management experience has always been in the form of a written referral with specific questions offered as guidance that the referrer is encouraged to use, but with the option to ask their own questions should they wish to do so. The standard core questions are usually similar to:
- Is the member of staff fit to return to work?
- If they are not fit to work, are there any short-term adjustments to enable a return to work?
- Would the employee’s condition or its effects be likely to be covered by the disability provisions of the Equality Act (2010)? If so, are there any adjustments for management to consider?
One of the main roles of an OH advisor undertaking case management, I believe, is to advise on The Equality Act 2010 (EQA) which is the law that (as most OH professionals I appreciate will know only too well) bans the unfair treatment of employees (in other words, on the grounds of age, disability, race, sex and so on) and helps achieve equal opportunities in the workplace and in wider society.
The area that falls to occupational health assessment is disability. It is a legal decision as to whether an individual is ultimately covered by this legislation, but it usually falls to the medical professionals to assess whether the medical condition would be likely to fulfil the legal criteria.
Advising on the EQA is an important part of the role of OH, given that the number of disability discrimination claims brought before employment tribunals rose to 6,550 in 2018, a 37% increase on the previous year, according to new figures (Baska 2019).
However, we as OH advisors are often juggling this advisory role alongside assessing medical conditions, supporting our employees to access good medical care and health promotion and we can be dealing with a range of reasons for the referral including capability and disciplinary hearings.
The importance of the EQA requires us to be up to date in our practice, but this is a difficult subject for OH advisors. Where do we learn the type of critical thinking that is required to juggle the multiple facets of our decision making? My own knowledge base has arisen from managers with inspirational leadership styles and at times I worked alongside an occupational physician (OP), with whom I have been able to discuss issues and formulate plans of action for difficult cases.
At other times, I have worked remotely and relied largely on my own judgment or discussion with other OH advisors. I have had very little monitoring of my work over the years until my current post. Indeed this entire article has come out of the fact that in my current employment all our reports are checked by a senior OH advisor prior to release (in a previous role they were just checked by admin for sense/spelling, with in some other roles no checking at all) and when this role came to me I noticed a difference in practice between myself and junior colleagues. This prompted me to begin a reflection on my practice.
The NMC suggests that a reflection is structured as follows:
- What was the nature of the CPD activity or experience in your practice?
- What did you learn from the activity?
- How is this relevant to the Code?
- How did you change or improve your practice as a result?
In this article I intend to look at each in turn.
1) What was the nature of the CPD activity or experience in your practice?
The standard question that our company uses regarding the Equality Act is: “In your view is it likely that the member of staff’s condition and/or effects could be considered within the scope the disability provision of the Equality Act (2010)? If so are, there any specific adjustments for management to consider?”.
The definition of disability is set out in section 6 of the Equality Act 2010. It says:
“(1) A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
If, following my assessment, the reported health condition met the above criteria in my view then I would answer, “yes it was likely that they would be covered”. If not, then “no unlikely to be covered”, of course with the proviso that it was a legal decision rather than a medical one. So far, so good.
However, not all individuals have just one medical condition. Stafford et al (2018) report that the number of people in England with 4+ conditions is predicted to double between 2015 and 2035 and, surprisingly, 30% of people with 4+ conditions are under 65 years of age and therefore may be still at work.
Recently I took on a senior role including auditing reports and we employed some new colleagues. On auditing their reports, I had noticed they would on occasion answer the Equality Act question differently to me. If an individual had more than one medical condition, they would address each condition separately.
My colleagues would, in the main, answer correctly that, yes, they would be likely to be covered for the long-term condition. But under the EQA question they would include the advice that they would be unlikely to be covered for any short-term medical condition identified. The implication of this being that management are obliged to consider adjustments for one health condition but not for the other.
I began to question my own practice, as I have only included conditions likely to be covered under the EQA question and then suggested adjustments related to those conditions. I am careful to think about how the suggested adjustments will help them to remain at work or come back to work.
I felt uneasy at the prospect of pointing out what specific conditions the individual might not be covered for. I admit that I felt quite alarmed that this was an area of practice that I could get wrong even with so many years of experience.
Reflecting with colleagues
I debated this with my colleague to try to clarify what we should advise as a department going forwards. She explained that a previous OP had advised her to do this since we would not expect an employer to make an adjustment for a short-term health problem; another colleague said the same. I continued to wonder whether I needed to change my advice.
I read through the Equality Act’s precise wording, but there was no clarification that an individual could have a condition that was a disability under the law but another condition that wasn’t. As an example raised by my colleague, an individual might have diabetes controlled with insulin and be covered by the EQA, but the same individual might not be covered if they presented with back pain, as they had not had it for a year or it did not meet the other criteria.
I looked at tribunal guidance on determining questions relating to the definition of disability again; there was no clarification there that could help to answer my question. I admit I am puzzled by the wording of the EQA which, by my reading, considers a person to have a disability if they have one condition that would be likely to be covered. However clearly, I am not a legal expert.
At this point I began to wonder if there was some employment tribunal or employment appeal tribunal decision that had prompted this way of answering the EQA question. Had there been a ruling that required medical conditions to be considered in this way?
Trying to shed some light on this to help with the reflection, I posed the question in an OH advisors’ forum. Everyone was keen to help but I struggled to get an answer I felt got to the crux of the question.
Some helpfully explained their practice; that they would address health conditions separately and indicate where the EQA might not apply. Others explained how to decide if the Equality Act applied.
I was unable to ascertain where their practice derived from and I was not willing to change my practice without feeling that I had understood the issue. I therefore posed a similar question in another forum where I got similar replies, although an OP of some standing did respond that the most important phrase of the EQA is 13 (1) namely that: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
Giving back pain as an example, he advised: “If the back pain is not of itself a disability, it is not a protected characteristic. If the person has lots of time off sick with back pain, and also has epilepsy, disciplining them for their absence has nothing to do with their epilepsy. They are not being treated unfavourably because of their epilepsy.”
It was pointed out that, crucially, it was important to look at whether the long-term health condition and the short-term health condition could be linked.
This has set me thinking about how difficult it is to be an evidence-based practitioner generally in occupational health for OH advisors. It is not a new problem for me, and in the past it has even caused me to change employment because of a reluctance to blindly accept what I am told by my employers, who often are not medical practitioners and have not responded to my questions except in a “this is an instruction” manner.
I considered joining an OH law forum with a view to raising the question about my practice, but there was a significant cost attached and it was not definitively going to be able to answer my question, as it was related to everyday practice as an OH advisor.
I was feeling quite frustrated and eventually decided to approach a legal expert directly via email. I got a response after only a couple of days, confirming there is no duty to consider reasonable adjustments for an additional health condition that would be unlikely to be covered by the EQA.
I clarified the health conditions linked to the long-term health condition would be likely to be covered, for example pathological fractures. It was suggested that, where health conditions could be linked, this should be acknowledged in our reports. Interestingly it was acknowledged that the latter is the OH practitioner’s particular area of expertise.
2) What did you learn from the activity?
On the face of it, I had it confirmed that employees can be covered for one medical condition but not for another and therefore there is no obligation to make adjustments for the second condition that is not likely to be covered by the EQA.
However, if the presenting condition could be linked to a condition which could be considered a disability, then this should be indicated.
3) How is this relevant to the Code?
This element is easy since this process of reflection, to my mind, covers all aspects of the Code, although in OH these have a slightly different slant. I would argue I met all the below criteria:
3.4 “advocating for the ‘vulnerable, challenging poor practice and discriminatory attitudes’ (prioritise people)”
6.2 maintaining the “knowledge and skills you need for safe and effective practice” (practise effectively).”
17.3 Having “knowledge of and keep to the relevant laws and policies about protecting and caring for vulnerable people” (preserve safety)
20.4 keeping “to the laws of the country in which you are practising” (promote professionalism and trust).
4) How did you change or improve your practice as a result?
This was interesting, and involved a great deal of thought before I could put it into something that I could share with our team. It was important because I needed to clarify for them how we would address this going forwards.
I spent several weeks trying to sort through in my mind what my reflection should change about my practice. In the end I decided that I did not really need to change my practice a great deal; it is perhaps that it is a “good law but bad OH” matter.
I reasoned it in this way. My practice was not wrong. I did not expect an employer to make adjustments under the EQA for a short-term health condition. I am clear what constitutes a disability and the purpose of adjustments.
However, the law is one area and OH has a wider focus than just what is legally required. As the ILO/WHO definition of occupational health emphasises: “Occupational Health is the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations by preventing departures from health, controlling risks and the adaptation of work to people, and people to their jobs.”
Crucially there are ethical aspects in addition to legal aspects. Ultimately, I decided on two changes:
- Changing the wording of our question on short-term adjustments to “short-term accommodations” to facilitate a return to work. Adjustments, although it means “a small alteration or movement made to achieve a desired fit, appearance, or result” (Lexico.com 2020) can be confused with the EQA legal term “reasonable adjustments”, so we have changed it to add clarity. We are referring to the practicalities of helping an individual return to work rather than advising on the law in this question.
- We have to consider whether a short-term health condition could be linked to a disability, and therefore advise under the EQA question that, by extension, it might be covered. This is potentially a very difficult area and, as we get an increasingly ageing population with comorbidity, I will watch tribunals with interest. I would urge my fellow OH advisors to be very careful how they word their EQA advice. For example, a brief search for health conditions associated with diabetes includes, “coeliac disease, thyroid disease and haemochromatosis, muscular conditions and dental problems” (Diabetes UK). I suggest that it is only a matter of time before the “linked health conditions” defence comes to an employment tribunal.
Overall, I take the view that management needs to be clear what accommodations/adjustments and what level of absence it can support for each individual and for its business, because this is its legal defence against unfair dismissal. It is for management to determine what is “reasonable”.
I would therefore suggest that it is perhaps unethical for OH advisors to indicate to management that they do not legally have to consider certain support that would enable a person to return to work. I would also be interested to hear what other practitioners feel about this.
Cooper J (2017). “Good practice when making occupational health referrals”. Occupational Health & Wellbeing, https://www.personneltoday.com/hr/good-practice-making-occupational-health-referrals/’)
Baska M (2019). “Number of disability discrimination cases growing eight times faster than other tribunal claims”. People Management, https://www.peoplemanagement.co.uk/news/articles/disability-discrimination-cases-growing-eight-times-faster-other-tribunals
The Nursing and Midwifery Council 2019. Reflective practice guidance sheet. http://revalidation.nmc.org.uk/download-resources/forms-and-templates.html
Equality Act (2010). http://www.legislation.gov.uk/ukpga/2010/15/section/6
Stafford et al (2018). Briefing: Understanding the health care needs of people with multiple health conditions, https://www.health.org.uk/sites/default/files/upload/publications/2018/Understanding%20the%20health%20care%20needs%20of%20people%20with%20multiple%20health%20conditions.pdf
Office for Disability Issues (2011). Equality Act 2010 Guidance. “Guidance on matters to be taken into account in determining questions relating to the definition of disability”. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570382/Equality_Act_2010-disability_definition.pdf
Equality Act (2010). http://www.legislation.gov.uk/ukpga/2010/15/section/6
ILO/WHO definition of occupational health 1950, https://www.fohn.org.uk/occupational-health/
‘Adjustment’ Lexico.com (2020). https://www.lexico.com/definition/adjustment
Diabetes UK (The British Diabetic Association), “Diabetes Related Conditions”, https://www.diabetes.org.uk/diabetes-the-basics/related-conditions
The Nursing and Midwifery Council 2019. Read the Code online, https://www.nmc.org.uk/standards/code/read-the-code-online/