Potentially Ron,
However I would think in light of the new legislation that the employer should be careful. Firstly I would assess the impact of the health effect on the individuals ability to do the work, if not possible, what adjustments could be made to accomodate this, if none, what other work could the individual do, if none, dismiss with documented medical evidence.
2 interesting bits of case law for you, not 100% relevant but close and well worth a read:
Baker v Kaye (1997)
Mr Baker, applying for a job as International Sales Director, attended for pre-employment assessment by Dr Kaye. During the assessment, Dr Kaye elicited a history of significant alcohol consumption, supported subsequently by abnormal liver enzymes. Mr Baker had already resigned from his existing post, and when Dr Kaye advised the new employer that he did not consider Mr Baker fit for employment, Mr Baker sued for loss of the new post. The court in this case held that the OH physician owed a duty of care to the prospective employee, as well as to the employer, but as Dr Kaye had taken reasonable care in making the assessment, he was found not to be negligent
Kapfunde v Abbey National plc (1998) However, the Court of Appeal, in Kapfunde v Abbey National plc (1998), disagreed with the decision in the case above. Mrs Kapfunde, who suffered from sickle cell disease, applied for a job at the Abbey National. Dr Daniel, advising Abbey National, reported that the applicant’s medical history and previous absence record indicated that she was likely to have an above average sickness record. Mrs Kapfunde was not considered for the job, and subsequently sued Abbey National, arguing that Dr Daniel had been negligent. The Court, in judging Dr Daniel not negligent (because she had exercised reasonable skill and care in reaching her decision), added that neither did she owe a duty of care to Mrs Kapfunde