Asking about employee health: lessons from the Glasgow bin lorry incident

The tragic incident in Glasgow where a bin lorry ran out of control, killing six people in the process, is still very much in the public…

As one of the 'most read' stories on the BBC news website, the tragic incident in Glasgow where a bin lorry ran out of control and into a building, killing six people in the process, is still very much in the public consciousness. Whilst the tragic outcome of the incident remains the proper focus for reflection, the details which have come out from the Fatal Accident Inquiry (FAI) do represent a timely reminder to employers of the need for and value of good pre-employment checks.

One of the obligations on the holder of a large goods vehicle licence is that they must inform the DVLA of any medical conditions which affect safe driving. The applicable conditions are set out by the DVLA and include situations where an individual has suffered black outs. The reports on the FAI suggested that Mr Clark, the bin lorry driver, had previously been employed as a bus driver in 2010 but had stopped following a black out incident.

Despite his obligation to do so, it would appear on the information available, that Mr Clark failed to inform the DVLA of the condition and his licenses remained current. Unfortunately, current regulations place no obligation on any previous employer to report such an incident or medical condition if the driver fails to do so. Even further than that however, any such report by the previous employer could well amount to a breach of data protection rules.

The reports from the FAI also suggest that when Mr Clark applied for the role of bin lorry driver he failed to disclose his black outs on his application as well as during the health assessments for Glasgow City Council. Given the lacuna where there is no obligation on a previous employer to disclose such medical information and where an employee fails to comply with his duties and conceals the existence of those conditions, it is difficult to see what more Glasgow City Council could have done.

That, however, does not mean that pre-employment checks are not worthwhile. Specific questions in applications, especially for those in safety critical roles, can and should be asked and any medical evidence should be followed up. Should it be established at a later date that the employee misled or concealed information on his application form then there would be clear grounds for disciplinary proceedings which could potentially result in dismissal.

In addition, the use of specific questions would also assist your business in complying with regulatory conditions, such as maintaining its good repute to maintain its operator's licence, and would also assist in your company’s defence to any subsequent proceedings alleging it was at fault. Should an investigation be conducted into whether or not the employer acted appropriately in employing the offending individual then the more specific those questions are, the more compelling evidence the employer would have to argue that they did as much as they could.

Whilst section 60 of the Equality Act 2010 provides a general prohibition on the ability to ask about the health of an applicant before offering work, there are exceptions. Importantly the legislation permits any questions which are necessary for the purpose of establishing whether or not the applicant would be able to carry out functions intrinsic to the work concerned. Whether or not a driver is capable of maintaining their driving licence would clearly be intrinsic to their ability to carry out their role effectively.

As noted above, the most disappointing aspect of the duty to report medical conditions which will impact on an individual's ability to hold a licence is that the duty applies solely to the individual themselves (save some exceptional circumstances which can result in their medical practitioner informing the DVLA). This seems to be contrary to the crucial public safety aim of ensuring that drivers are safe to take charge of LGVs. It also means that the system is open for abuse. You may be able to disclose information relating to a former employee in certain limited circumstances. For example, you may receive a reference request relating to a former employee whom you know was dismissed after becoming incapable to perform their role. At that point, it may be possible to disclose certain relevant information, particularly where safety is an obvious consideration for the new role in question. A failure to disclose relevant information, even by omission, could result in a claim for negligent misstatement should the information come to light at a later date and the new employer suffers financial loss.

These issues are clearly of significant importance and touch on a number of difficult legal conflicts. If you face yourself grappling with these problems it is advisable to seek advice on how best to balance your multiple responsibilities as an employer.

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