Farm recruitment: How to tackle issues around medical history

Most farmworkers do a wide range of physical jobs, so it is useful to know if they have a condition that may hinder their ability to perform these tasks or puts them at risk, both for their sake and for the smooth running of the business.

However, asking a potential or existing employee about their health can be a legal minefield.

Section 6 of the Equality Act 2010 rules out recruiters enquiring about medical conditions before they make a job offer and prevents the offer being withdrawn if a condition comes to light after someone has been hired.

See also: How to keep lone workers safe on farm

Phil Cookson, a partner at Roythornes Solicitors, warns against asking a job candidate about their health status.

“If a question is asked and the candidate discloses a medical issue, if they are rejected for the position there is a high risk that they will link it to their disclosure and potentially make a claim for discrimination,” he says.

If a claim is made, the employer must then prove the reason the candidate wasn’t hired was because they were not the best person for the role. However, questions can be asked after an offer has been made.

Phil advises requesting the employee to complete a health questionnaire to comply with health and safety obligations.

If a farmer is concerned that a condition disclosed at this point will prevent a new recruit from being able to carry out fully the job as described, it may be a sufficient reason to withdraw the offer, but Phil adds: “The farmer must be able to justify it, to show that even with reasonable adjustments it can’t work.

“In all agricultural settings, farmworkers do a wide range of jobs, so a judgement must be made on which are more intrinsic to the working blend than others, or it may be that they are all necessary.”

Reasonable adjustments

In many cases, reasonable adjustments can be made to make it work. “If, for example, an applicant for a job on a dairy farm has a prosthetic foot which wasn’t evident at interview, it might just mean providing a different safety boot to offer that extra level of protection,” says Phil.

Some sectors of agriculture – for example, vegetable and egg production – require rigorous health checks for staff working on a packing line.

If those health checks flag up issues with new recruits that are contrary to food safety the business will be in a position where it can legitimately withdraw or postpone a job offer as audit requirements won’t allow them to be on the packing line, if there are no other suitable alternative roles, Phil advises.

Making employee health and wellbeing a central aspect of the ethos of a farm business is a positive thing for the workforce and the employer, reckons Robert Gazely, a partner at consultant Ceres Rural.

Employees should be made aware that provisions are in place not only in the event of an accident, but if an employee suffers a medical episode in the workplace, such as cardiac arrest or epileptic fit, he says.

Positive culture

“Ensure employees realise they are being asked about their health as part of a positive culture intended to safeguard and not to isolate or catch out the individual,” says Robert.

Data protection measures are important when it comes to employee health, with complex provisions around the General Data Protection Regulation and the Data Protection Act, so information provided must be stored and treated privately.

Effective communication with employees will help them realise that health information allows work tasks and responsibilities to be planned safely.

“Notwithstanding the use of personal and respiratory protective equipment, this might include ensuring that nobody with asthma encounters dusty environments, and that anyone who is pregnant can be safeguarded appropriately, particularly when it comes to working with livestock,” Mr Gazely explains.

Health surveillance

An important part of occupational health is how work and the work environment can affect workers’ health, therefore he advises carrying out health surveillance where appropriate.

Health and safety law requires surveillance to be undertaken when workers remain exposed to health risks even after controls are put in place.

“Health surveillance is a scheme of repeated health checks which are used to identify ill health caused by work,” Robert explains. “Risks that require health surveillance include noise, vibration and hazardous substances.”

For protection under health and safety legislation, employers should not ignore the signs of a disability in a staff member. It may, for example, become apparent that a worker is suffering with back problems and it is being exacerbated by day-to-day tasks – for example, by carrying hay bales or feed bags.

Have that discussion with the employee, Phil recommends.

“You can’t simply ignore a condition once you know about it and there are often simple and practical solutions, perhaps giving the worker lighter duties, automating a task, or bringing in casual labour to help with a specific job.

“If someone is doing a cracking job, an employer will find a way of making it work.”

The reality is that agriculture has an ageing workforce and many medical issues arise and physical decline happens as people get older.

When that is the case, the employee will start to recognise it too and that facilitates open and honest discussions about how gaps can be plugged or how duties need to be redefined, says Phil.

Claims are expensive

If an employee does bring a disability discrimination claim, it can be costly.

Unfair dismissal claims that are instigated for reasons other than discrimination have a cap on awards of about £105,000 or a year’s salary. However, this ceiling does not apply in discrimination claims.

There are costs to consider, too.

In a civil court case, a good percentage of costs are met by the person who loses the case, but not in tribunals, so it might cost £10,000-£15,000 to employ a solicitor with no guarantee that the tribunal will find in favour of the business, says Phil.

“Farmers can sometimes get entrenched in fighting a claim and ignore the commercial reality. Sometimes it is the size of the cheque they are writing that matters, not the name on the cheque.”