Road Transport and Logistics Briefing - Pre-employment health checks

Published: 07/12/2015

With the recent inquest and outcome of the Glasgow City bin lorry disaster still fresh in many peoples’ minds, employers should be aware of their obligation to ensure that they have in place the relevant regulatory safeguards to prevent harm being done to fellow employees or members of the public by their workers.

The introduction of certain provisions of the Equality Act made many employers nervous about the whole question of enquiring about the health of a prospective worker. Such questions should not generally be asked with a view to deciding whether or not to make an offer of employment. However, it is imperative that they are asked prior to employment being taken up by an individual and therefore any offer may be subject to the relevant health checks being undertaken.

Section 60 of the Equality Act sets out a general prohibition of the employer’s ability to ask about an applicant’s health before offering work. Section 60(6) provides certain exceptions to this prohibition. You as an employer are entitled to ask questions which are “necessary for the purpose of establishing whether the applicant would be able to carry out a function that is intrinsic to the work concerned”. Don’t forget that the duty to make reasonable adjustments will also apply if the individual has a disability and should be taken into account when deciding whether the individual can carry the intrinsic functions of the role.

Some employers will check the health position of an employee once they have commenced employment. This might be too late if a catastrophic event or accident were to take place subsequent to the employee commencing employment but before they had had an opportunity of being subject to any health screening.

It is also not unusual for employers to allow employees to commence employment not only without undergoing any relevant health screening but also without obtaining relevant references or confirming qualifications.

For employees who are involved in safety critical roles it would be advisable to consider whether the exception under section 60(6) of the Equality Act applies, or at least ensure that any employee is subject to a full health screen (including historic health issues which may include obtaining relevant doctors’ medical records) prior to them commencing employment.

Glasgow City Council appear to have said that they did all that they could when employing Mr Clarke by asking him about his current state of health, claiming that it was only by reason of the fact that Mr Clarke lied in his response that he was successful in gaining employment. However, in line with DVLA requirements, HSE suggests employers screen all existing and potential workplace transport operators for fitness before employment and at five-yearly intervals from age 45.

Depending on the employee’s role this level of screening might also be necessary in other positions, such as operating machinery.

For further information on this topic, please contact a member of Birketts' Employment Law Team. This article provides only a general summary and is not intended to be comprehensive. Specific legal advice should be taken in any individual application. Law covered as at December 2015

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