Employment tribunals and occupational health practitioners.

Employment tribunals (ETs) (formerly named industrial tribunals) were first created in the 1960s under the Industrial Training Act. The current level of activity is .100 000 cases that are commenced each year, though less than a third of those come to trial. Principal complaints are of unfair dismissal and claims under the antidiscrimination laws, which now extend to discrimination on grounds of sex, race, disability, sexual orientation, religion and age. The tribunals consist of a legally qualified Chairman (either a barrister or solicitor) and two members who represent the interest of employers and employees, respectively. Each member of the tribunal has an equal vote, but in practice decisions are nearly always unanimous. Much of the legislation originates in European directives, and leading cases occasionally are taken as far as the European Court in Luxembourg, which has the final say on issues of European Community law. Occupational health (OH) professionals are likely to become involved in a case which goes to a tribunal in potentially three areas. The first is a dismissal for incapability where the employee has been sacked for poor attendance caused by ill-health. The law requires that an employer considering dismissing for this reason should in most cases first seek medical evidence about the reason for the absence and the prognosis. The employer should also consider whether the employee could be redeployed in another available job, though there is no duty to invent a job. Medical advice about the functional abilities of the employee may be relevant here. The second is an employee or job applicant who claims that he or she is disabled within the definition in the Disability Discrimination Act 1995 and has been discriminated against because of the disability. The OH professional may be asked by the employer whether the employee is likely to be disabled and also to advise about possible adjustments to the physical environment or working practices which would assist the employee to do the job. The third area is where the OH professional is an expert brought in from outside with no previous knowledge of the individual, essentially to advise the tribunal on matters which are outside their area of expertise. Such a witness has a primary duty to the tribunal and must not be partisan. When chairing ETs, it is important to understand the role of OH professionals in contrast to clinicians. Lack of this understanding can lead to the tribunal rejecting the advice of the occupational physician in favour of the views of a clinician. The Management of Health and Safety at Work Regulations 1999 require the employer to undertake a risk assessment of likely health and safety hazards created by its operations. In Jones v. Post Office ([2001] IRLR 384), a mail delivery driver contracted insulin-dependent diabetes. He was permitted on the recommendation of two senior OH physicians only to drive 2 h in every 24 h and complained to an ET that he had been unlawfully discriminated against on grounds of his disability. The employer’s defence was that the discrimination was justified as ‘for a material and substantial reason’. In the tribunal, the claimant called a consultant physician as an expert witness in his support. The employer called two senior occupational physicians on whose advice it had relied. The tribunal decided the medical issue by preferring the evidence of the clinician who advised that there was no reason why the employee could not continue to drive 8 h a day, but the Employment Appeal Tribunal and the Court of Appeal disagreed. A tribunal cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors, and which produces an answer which is not irrational. A tribunal is not permitted to make up its own mind on justification on the basis of its appraisal of the medical evidence and to conclude that the reason is not material or substantial because the medical opinion on the basis of which the employer’s decision was made is thought to be inferior to a different medical opinion expressed to the tribunal: