When an employee is ill, an employer will often wish to engage Occupational Health to produce a report on the employee’s health, any adjustments that could be made to the employee’s role and the return to work possibilities and options.
It is usually the employer’s responsibility to arrange and pay for the occupational health appointment. Once an appointment is arranged, the employee should be informed and should attend. If they refuse to co-operate, then (in a dismissal context) the employer could still dismiss fairly based on the evidence they already have. An employee’s refusal to cooperate may also result in a contributory fault reduction in any compensation awarded. The employment contract should include a stated obligation on the employee to attend all appointments which the company may require, however there should be no stated consent around medical records in the contract as, post-GDPR, an employer will be unable to rely on such consent.
When engaging Occupational Health, the employer should outline the reasons for the referral, seeking information limited to the specific concern. Occupational Health will produce a report, and the employer should request that this report includes:
The employee must give their express written consent for their medical records to be obtained by Occupational Health for the purposes of the assessment, to ensure compliance with the Access to Medical Reports Act 1988 (AMRA).
The employer’s knowledge of a disability is an important consideration in a disability discrimination claim. Where an Occupational Health assessment has taken place, only the knowledge which Occupational Health discloses to the employer is imputed to the employer (eg. where an employee informs the health professional of any further issues which are not relevant to the enquiry, there is a presumption of confidentiality and the employer is not deemed to have knowledge of them).
AMRA states that an employer cannot apply for a medical report from a doctor who has been responsible for a person’s physical or mental care without the employee’s express written consent. The employee has the right to refuse to give such consent, to review a first draft of the report and to request amendments. These rights do not apply to an Occupational Health report as the Occupational Health professional will not have been historically responsible for the care of the employee. However, although Occupational Health is not obliged to share the report under AMRA, the British Medical Association advocates that health professionals should be prepared to discuss the contents of their reports with the employee concerned.
If you have any further queries on this topic, or would like help in instructing Occupational Health please contact us.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
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