Sleeping On The Job
! This article was written and first published before 2006. It may now contain information and/or advice that is no longer valid. Please telephone us if you need further guidance.
The principal symptoms of Obstructive Sleep Apnoea (OSA) are excessive daytime sleepiness and regular heavy snoring. Although we would all know that falling asleep at work is not conducive to a successful career, an employer will not always be justified in terminating the employment of an employee suffering from OSA. David Barnett of Paisner & Co, solicitors advises on the legal issues.
The law attempts to balance the rights of employees against the needs of the employer's business. It recognises that the business must be able to run efficiently and cannot be expected to wait indefinitely for an employee with a long-term illness to recover. The law therefore provides that illness, whether it be physical or mental, is a potentially fair reason for dismissal, however the employer must act fairly and reasonably.
An employer may be justified in dismissing an employee where the nature of the illness, such as OSA, means that the continued employment of the employee could pose a risk to themselves, their colleagues or, where appropriate, the employer's customers or clients. However, Tribunals will scrutinise such dismissals to ensure that employers' fears in this regard are reasonable and genuine.
Consultation With A Doctor
Before dismissing an employee on health grounds, an employer should carry out a proper medical review to find out when the employee will be fit to work. This inevitably involves taking medical advice from a qualified medical advisor who should be told the purpose of the review and given any relevant information about the job. The employer must obtain the employee's consent in order to obtain a report from the employee's own doctor (Access to Medical Reports Act 1988 and Access to Health Records Act 1990). Alternatively the employer may request the employee see a doctor or consultant of the employer's choice.
At present, there is a requirement of two years service to be able to bring a claim for unfair dismissal. Other than in exceptional circumstances, it will be unfair to dismiss an employee with more than two years service on health grounds without consultation. The object of such consultation is to give the employee an opportunity to obtain his own medical report or to comment on the medical report which has been obtained by the employer.
Employers should also consider alternatives to dismissal and this should be raised in the consultation meeting with the employee. If OSA renders the employee unfit to drive and the employee's job necessarily involves driving, the employer should consider the employee for any vacant positions that do not involve driving. Similarly, an employee whose job normally entails operating dangerous machinery should be considered for other duties until the OSA is cured.
Meeting With The Employee
The employee should be invited to attend a meeting to discuss his future employment with the employer in the light of the illness. The invitation may be made over the telephone but should be confirmed in writing. The letter must make the purpose of the meeting quite clear to him and he should be advised of his right to bring a colleague if he so wishes. Ideally, the meeting should take place in the presence of the employer's Occupational Health Advisor (if it has one) and should be led by someone from the Personnel Department.
The meeting should begin with a summary of all the available evidence regarding the employee's condition. It should be explained to him (as tactfully as possible) that the employer needs to replace the employee or where the employee poses a risk, that the employer cannot take that risk and therefore the employer has reluctantly decided that he cannot resume his employment in his present position. The employee should be given an opportunity to make representations at this stage.
Then at the meeting alternatives should be considered. For example, a move to a clerical job rather than a driving job. If there are no suitable alternatives, the employer should make it clear that it has considered the possibility of alternative employment but has nothing to offer. The employee should again be given an opportunity to make representations on the question of alternative employment and, it may be necessary, to adjourn to consider these representations. Any final decision should be confirmed in writing and the employee should be informed of his right of appeal.
Permanent Health Insurance
Where an employer provides the benefit of this cover to the employee, the employer should check the terms of the policy and discuss the matter with the insurance company before dismissing. In some situations, insurance companies will refuse to make payments to employees if they have been dismissed and an employer may therefore decide to retain the employee without remuneration to enable him to receive money under the policy.
Disability Discrimination Act
The Disability Discrimination Act this year has introduced into employment law two important rights for disabled people, irrespective of length of service.
- The right not to be discriminated against when applying for employment or during employment.
- That employers must take reasonable steps to remove physical barriers or adjust their practices to enable disabled people to be employed.
Employers with less than 20 employees are exempt from these obligations.
Under the Act, 'disability' is defined as: '..a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities...'. An impairment has a long-term effect if it has lasted or is likely to last at least 12 months.
It is clear that OSA does have a substantial effect on a person's ability to carry out normal day-to-day activities (such as driving or working etc.) and that this effect would be long-term, if untreated.
This Act does not affect the employer's ability to dismiss an employee who is not capable of working, but does mean that employers must not discriminate against a disabled person who is capable of working, albeit with reasonable adjustments to premises or practices. The employer is still under a duty to consider the employee for alternative employment within its organisation.
To conclude, OSA should be treated like any other illness and a good employer should make a thorough investigation into the causes, effects and treatment for OSA before reaching any conclusion regarding the future of an employee suffering from this ailment.