How should solicitors assess the impact of disabilities, including mental health, on performance in the workplace and, therefore, on residual employment prospects and earning capacity? We speak to Occupational Psychologist Paul Doherty on the matter, and how he helps.
How can an occupational psychologist help the Court as an employment consultant?
A large part of my work requires me to design recruitment and development programmes for organisations, including making reasonable adjustments under the Equality Act. My work as an occupational psychologist gives me a solid understanding of the demands of work (emotional, intellectual and interpersonal) and enables me to make a realistic assessment about how an individual will be viewed by prospective employers. I readily appreciate how different disabilities / health problems can impact on work performance.
What process do you undergo when first instructed on a case? Can you share with Lawyer Monthly your step by step process?
My first step is to arrange to interview the Claimant, usually this is face-to-face at their home, but could equally be at their solicitor’s office, my office or by Skype. The interview can last around two to three hours and may sometimes include psychometric testing.
I start with looking at the person’s functional capability, which means what they can do on a sustainable basis day-to-day, taking into account any on-going disabilities, mental health issues, literacy and numeracy skills (e.g. if are they dyslexic), resilience, drive, as well as their transferable skills, qualifications, and the level of support they have, etc. I might use psychometric testing to objectively assess retraining capacity for a new career, which can also be useful in assessing their pre-injury career potential and so provide some reality testing on their stated pre-injury aspirations and earnings.
It’s usually easier for someone to return to their employer than to move firms, so I consider first the reasonable adjustments that would allow them to go back to their old job or to another role with that employer.
If that’s not an option, I will examine the local labour market to identify opportunities and look at alternative careers / jobs / employers that are realistic for this individual in their changed circumstances. I use the evidence I have gathered from the bundle provided by the solicitor, from my interview with the Claimant and labour market research to establish whether the individual is likely to be able to meet the performance demands of another job role, and their likely level of pay. As a former government scientist, I am familiar with interpreting employment statistics.
How often do people outside your field dismiss the impact disability or mental health can have on an individual’s likely future performance at work? What could be done to change this?
It depends on the disability. What’s interesting is the really obvious physical disabilities are often the easiest to accommodate in the work place; for example, those who use a wheelchair. What is harder for employers to manage are those disabilities that are fluctuating / or unpredictable, complex or multiple disabilities, and any disability that impacts on interpersonal behaviour. For example, one of the most negative impacts on employment of brain injury is due to reduced self-awareness and increased disinhibition. Mental health can impact on these behaviours also.
Do you think work places are becoming more disability friendly?
Yes, and no. Technological changes have been wonderful, for example, allowing people to work from home or providing prompts for those with memory problems. But jobs are now more complex, competitive, insecure and are ever changing. This places continual demands on people. Even manual jobs now very often require very good customer service skills.
Does the nature of litigation cause people to exaggerate or lie about the extent of their disability?
Sometimes, although I have only seen total fabrication a handful of times. What is more common is residual anger towards the Defendant and the whole litigation process, which can encourage a kind of learned helplessness and symptom obsession, which in turn can reduce motivation and willingness to go outside personal comfort zones. There are very often financial disincentives to taking positive action. My experience is that if you build a relationship with the Claimant (and also the instructing solicitors), that positive outcomes can follow.
What is your favourite part about being an expert witness? On the contrary, what do you dislike?
I really enjoy generating ideas for alternative work that might be suitable for someone. I also get a lot of satisfaction from producing a report that I hope will help the Court take an informed view on the loss of earnings aspects of the individual. My least favourite part is dealing with experts instructed by the other side when they are not acting impartially and objectively, but behaving as a ‘hired gun’. It diminishes them, the reputation of employment experts and most importantly, access to justice. It also simply just runs up fees, as I have to spend time disputing all they say!
Paul Doherty
Partner
01892 517866
Paul is a Chartered Occupational Psychologist and Associate Fellow of the British Psychological Society (BPS). Since 1992 he has provided expert evidence as an Employment Consultant where loss of earnings is a significant factor. He is instructed by both Defendant and Claimant solicitors in personal injury, clinical negligence, disability discrimination and marital cases.
Doherty Stobbs is a professional consultancy firm using applied psychology to help organisations and individuals reach their business/work goals. Our services are broad and integrated and include: Talent Management, Career Coaching / Enhancing Performance, Vocational Rehabilitation / Disability Management, Litigation Support / Expert Witnesses
