Fitness for work
A peripatetic officer in a public service presented a sickness absence certification citing an admission to hospital for investigations into sleep apnoea. Her GP had subsequently referred her to specialist NHS services to explore treatment options, but having had the diagnosis confirmed there was now a waiting list of more than 18 months for an appointment to discuss potential treatment. The GP had not apparently advised the officer to inform the DVLA, but her work involved driving company vehicles for a significant period every day. Occupational Health (OH) was asked to advise on the individual’s fitness to drive company vehicles for insurance purposes.
The HR adviser had checked the DVLA driving standards guidance* on sleep apnoea and was concerned as to whether the company’s insurance would be valid. The HR adviser was also concerned about the organisation’s ability to gainfully employ the officer for the 18 months that she would be waiting for her appointment, were she unable to drive to and from appointments.
My first enquiry was for clarification from the insurers. It turned out that the organisation self-insured where the employer insures themselves and they do not buy in or rely on 3rd party insurance. This meant that the only guidance on which the employer could make a decision on fitness to drive was from the OH service.
A case conference was held including HR, the line manager, the officer herself and the OH Adviser (OHA) to discuss next steps and how to ensure that any disadvantage to the officer as a result of his condition was minimised.
The OHA explained the impact of sleep apnoea on safety critical activities and reviewed the individual risk assessment in terms of individual and corporate risk. She advised that the officer should be temporarily restricted from driving on work business until the situation had been clarified and satisfactory control of her condition had been attained.
She also recommended that management explore whether there were any business opportunities to be gained from the officer working in a mentorship role for a fellow colleague to be able to drive. This would reduce the consequential distress for the officer (reducing the risk of sickness absence for psychological conditions) and enable her to continue to provide expert services to the organisation until a long-term outcome was known.
HR wrote to the GP to explain that the officer had been suspended from driving duties at work in line with the DVLA guidance regarding the stated diagnosis on the hospital sick-note. They also asked for confirmation of the diagnosis, in case there had been an administrative error.
The individual was advised to apply to Access to Work for assistance in carrying out the driving aspect of her job (through provision of a driver) “until satisfactory control of symptoms has been attained, confirmed by medical opinion”†, as this was likely to last more than 12 months, and therefore may be considered to fall within the scope of the Disability Discrimination Act, 1995 (now Equality Act, 2010).
The manager collaborated with the training and HR departments to explore whether this time could be used to enable the officer to share expertise and train up junior colleagues.
The outcome of this case was that the sleep apnoea symptoms were never sufficiently controlled to enable the officer to return to her substantive post. However, by implementing the flexible programme of support, with funds from Access to Work, the business had a succession plan in place, and all the evidence for a successful application to the pension fund for early retirement on the grounds of ill health (IHER) had been collated to expedite a claim for IHER if her condition deteriorated.
If this case were to present today, the employer would be able to fast-track the sleep apnoea investigations and treatment via the HMRC EIM21774 arrangement. Treatment has developed significantly in this area and it is likely that the officer would have been able to drive.