“We have an employee who has recently joined us. Since accepting the role, they have advised us that they have epilepsy and, although they have had seizures very infrequently (twice since their teens with the last one just over 12 months’ ago), a seizure would mean they had to stop driving for a year. The role we have employed them to do involves physical therapy and care of patients within the community and the individual needs to be able to drive to appointments. Many of our clients are housebound or have restricted ability to travel and get around independently.
What should we be thinking about as an employer and what should we do if the employee, who is presently able to drive and carry out their role, has a seizure stopping them driving and attending patients? We are a small business and this would really impact us.”
For individual advice in a case which involves issues such as these, it is recommended that you contact Cains’ employment team. However, a few things to think about initially:
- Does the employee have a disability? It is likely that epilepsy is a disability for the purposes of equality legislation and safest to assume so, even if it is usually controlled by medication. The legal definition of a “disability” entails the individual having a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out day-to-day activities. Whilst epileptic seizures may be (considerably) spaced out, as in this case, if there is a possibility of recurrence, the condition will be considered long-term. Noting, additionally, that the employee has to stop driving for a year if they have a seizure, you can also assume that the impact of their condition is sufficiently serious to count as a disability. (Some types of epilepsy may not have a significant adverse effect on day-to-day activities, e.g. if the individual has nocturnal seizures only, so an assessment on a case-by-case basis is needed.)
- Employee’s rights. A “disabled” employee has the right (amongst other things) not to be unfairly discriminated against, whether directly or indirectly. This applies at all stages of employment and even before a job offer is made (eg at recruitment). As the employer you should also consider health and safety obligations and, potentially, your duty to make reasonable adjustments where a job requirement or policy at work (such as holding a valid driving licence) would place them at a substantial disadvantage due to their condition. If adjustments are required, they should be aimed at reducing or removing the individual’s disadvantage. Size and resources of the employer would be relevant. In the specific circumstances of this question, options may be limited if the employee is unable to drive and there is no office-based role or alternative duties to which you can transfer them.
- Finding out more. An employer cannot ask questions about health or disability before offering a candidate a job, unless it relates to an intrinsic part of the role – e.g. you could ask, if the position involves it, if the individual would have any difficulties working at heights or if there is any health-related reason that they couldn’t drive. This might not have revealed an issue in the case in question if the individual is not presently subject to any driving restriction, however. Once a job offer has been made, though, you can ask questions about health and disability and, where you become aware of an employee’s potential disability, this may trigger obligations from the point of view of health and safety and to make reasonable adjustments.
- Health and Safety. Regardless of whether the technical definition of “disability” is satisfied, employers have a duty to provide a safe system and place of work; to do this you ought to carry out a risk assessment. For this, you should discuss with the employee what type of epilepsy is involved, what medication or treatment they have, and what happens if they have a seizure (e.g. do they have “absences” or lose motor control and whether there are warnings or triggers). You also need to know how best to look after them and who to contact in case they experience a seizure at work. If there are concerns about the employee working alone with elderly or vulnerable patients from the point of view of the patients not being able to help if the employee suddenly becomes incapacitated or unwell due to their epilepsy, this needs to be known to you as the employer in order that you can properly evaluate the risks and make any contingency plans that may be sensible.
- One of the key questions in the present case is whether further seizures are likely or not, something which we cannot really know at this stage unless there is medical evidence that suggests a progressive condition. Conversely, it may be that this never becomes an issue for the employee at all during their new role. Subject to the risk assessment and what is discussed with the employee, the situation might be one of “waiting to see” and dealing with a problem (e.g. the employee not being able to drive) if it arises.
- Ultimately, if the employee is unable to drive long-term and alternative options are unavailable – e.g. a non-driving, office-based, role – then it might be that the employment contract is “frustrated” (i.e. it becomes impossible to perform) and/or may be terminated on the basis of medical incapacity. This is a technical, legal, point, though, and termination on this basis would need to be carefully handled via a fair procedure and only after proper consideration of the facts and medical evidence.
______________________________________________________________________________________________________________________
Useful Resources:-
https://epilepsysociety.org.uk/living-epilepsy/work-employment-and-epilepsy/information-employers (UK)
https://www.epilepsy.org.uk/living/driving/driving-rules-for-epilepsy (UK)
https://www.epsaiom.org/ (IOM) – see in particular https://www.epsaiom.org/government regarding driving
