Last reviewed 2 March 2016
It is an employer’s worst nightmare. An employee fails to reveal some crucial piece of information relating to his or her ability to carry out the job and, as a direct result, people die. This seems to have been how a terrible story unfolded in December 2014.
A bin lorry, out of control in the city centre, killed six people. It appeared that the driver had blacked out at the wheel while he was driving. This terrible event should have gone down as a tragic accident, but for one key piece of information — the driver had had spells of dizziness before that he had not disclosed to his employers. But for this failure to reveal relevant medical information, the driver would have been recorded as another victim of this accident. The fact that we now know this information was relevant, and that the non-disclosure may well have been deliberate, puts things in a very different light. While all employers can nod in the direction of their filing cabinets of employee health forms and signed application forms, how confident can we be, in the light of the Glasgow bin lorry case, that they are really worth the paper they are written on?
All employers employ people to carry out tasks that, potentially, could go horribly and tragically wrong. Employers hope to be able to employ competent people, provide adequate training, and put policies and procedures in place to help protect not only all the employers involved, but also customers and members of the public. The case of the Glasgow bin lorry suggests that it has not always been possible to make the process fail-safe.
An employer has a responsibility to ask appropriate and relevant medical questions before offering a contract to an individual. The immediate consequences of not answering these questions fully lie within the terms of the employment rather than within overarching legislation. For example, an employer may make it clear in the contract that dismissal may result for failure to disclose relevant information. This is particularly important when a job, such as in this case, involves driving, but may also be important for those working with, for example, heavy machinery.
Failing to disclose a medical issue that later becomes relevant to an individual’s competence to do the job, can, of course, go very much against them should an employer or other interested party sue him or her for damages done. Likewise, if an employer fails to ask the right questions of potential employees, this can go against the employer in any future action.
The first lesson to be learned from the Glasgow bin lorry case is for employers to check that they have appropriate comebacks for non-disclosure in their contracts and that their employees are made fully aware of these at the time of giving medical information.
An employer can have access to a person’s medical records from his or her general practitioner (GP). It is not permitted for an employee to ask a GP for such a medical report without the individual’s full consent. If an employee or potential employee refuses to give consent, an employer has to decide whether this is grounds not to continue with the employment process.
There has been some concern about individuals being able to change details in their medical records if they feel that they are inaccurate, misleading or irrelevant. However, a GP can refuse to do this if they disagree, instead adding a note to the report that puts forward the patient’s point of view on the issue and the GP’s reasons for not making the requested change or changes. It seems that, by and large, this matter is not a reason to doubt medical reports or dismiss their use entirely.
Of course, asking for medical reports is time-consuming and expensive, and employers may be reluctant to go down this route for these reasons. It is also a big step into an individual’s privacy and individuals may resent this intrusion unless very good medical grounds can be given to them as to why it is necessary. It is an employer’s responsibility to ensure that the employee is clear on why such information is being asked for and the reasons why it is important.
The second lesson for employers to learn from the Glasgow bin lorry case is to assess which of the jobs they have on offer warrants a GP medical report and which do not. This should be based on the scope within the job of medical issues causing danger to employees, customers, clients and the wider public. With hindsight, it seems clear that some medical issues have the scope to cause terrible danger as far as a person driving a bin lorry is concerned. Employers have the right to request medical reports and they need to review whether this is a right they should be taking up.
The third lesson is for employers to consider what the policy would be should a person in line for one of these jobs refuse to give consent to his or her GP being contacted for a medical report. An employer would need to be confident in their reasoning for allowing one individual not to give a medical report when another did so.
It is clear that this process is not fail safe. Individuals, of course, can elect not to take certain health issues to their GP. This may be because they choose not to get medical treatment. It could be because they instead go to alternative therapists for treatment or it could be that they do not want to disclose to their GP anything that could affect future job prospects. Without reporting these matters to medical professionals, they have less risk of being found out should they then also elect not to disclose these matters to their employer. This is not a comforting thought to an employer, but there is perhaps some comfort in understanding that these are relatively rare actions. Employers can also using the lessons outlined above, take steps to minimise the risks while also reducing their liability should future tragedies occur.
The responsibility of the Glasgow bin lorry tragedy may yet prove to lie with one individual who either did not see the significance of his past health issues or who felt he would rather not share it for fear of how it could affect his job prospects, or perhaps some other reason. The responsibility for such a tragedy not happening again, however, lies with the employers who have to be sure that they know all they can know about an individual before entrusting him or her with a job that could affect the welfare of others. We hope that our employees will be honest, at least in these issues, which impact on their own safety and the safety of others. What the Glasgow bin lorry case has suggested to us is that not all individuals will always tell us the full story, for whatever reason. As employers, we need to crack down on those elements we can control — asking the right questions, giving clear disincentives for not being honest and using our rights to go directly to the GP where necessary. Such tragedies may not be our fault, but we may have the ability to prevent them happening.