Obtaining a medical report on an employee

8 September, 2014

September 2014

 

Why would you need a medical report?

Later this year the Government is rolling out a new initiative whereby employees will now be referred by their GP to a new Health and Work Service when they reach or are expected to reach 4 weeks’ sickness absence.

 

However, for those employers who are unable to make the most of this service, either because they wish to obtain a report on an employee before they reach 4 weeks’ sickness absence or because they would prefer to obtain a report from their own occupational health provider, the following information will still be relevant.

 

There are many reasons why an employer may wish to consider obtaining a medical report on an employee. The most likely reasons are that:

  • They wish to know whether an employee who has taken a significant number of short term intermittent absences is suffering from an underlying medical condition;
  • They want to obtain a prognosis of the timescale within which an employee who is on long term sick leave is likely to return to work;
  • They need some help in determining whether an employee is suffering from a physical or mental impairment which might constitute a disability under the Equality Act 2010;
  • They need help in establishing whether there are any reasonable adjustments that might help a disabled employee to do their job or avoid workplace disadvantages; or
  • They want to know whether an employee might qualify for benefits under a permanent health insurance (PHI) policy.

What should the request contain?

To avoid the risk of breaching an employee’s right to privacy and also possible breaches of the Data Protection Act and discrimination legislation, an employer should ensure that any request for a medical report is focused and limited to the particular purpose for which it is obtained.

 

A request should always be made with reference to the employee’s ability to do their job rather than to information about an employee’s medical condition generally.

 

If an employer is asking for a medical opinion in order to decide whether to terminate an employee’s employment on capability grounds, it is advisable to seek information about the employee’s ability to perform their existing role as well as the viability of redeploying them to other available positions or making reasonable adjustments to enable them to perform their existing role.

 

Documents such as job descriptions and PHI scheme policies may need to be enclosed with a request.

 

What process should be followed?

Where a request involves obtaining a report relating to the physical or mental health of an employee prepared by a medical practitioner who is or has been responsible for the clinical care of the employee then the employer must comply with the provisions of the Access to Medical Reports Act 1988 (AMRA).

 

This will apply in the majority of cases. Even if an employer is requesting a report from an Occupational Health Consultant who has never had any involvement in the employee’s clinical care before, the Consultant may well want to obtain their own medical report from an employee’s GP or consultant, in which case AMRA should be followed.

 

Under AMRA, employers may only apply for a medical report if they have notified the employee concerned in writing that they intend to make an application, advised them of their rights under AMRA and then obtained that employee’s written consent to the application being made.

 

Employees can either:

  • Withhold their consent;
  • Consent to the application and agree that the report can be sent directly to their employer; or
  • Consent to the application but indicate that they wish to see the report before it is supplied to their employer.

 

Some contracts of employment oblige the employee to submit to medical examinations at the employer’s request and to consent to disclosure of the resulting medical report to the employer. If so, an employee’s refusal to consent will amount to a breach of contract.

 

However, any such contractual provision will not get around AMRA’s procedural requirements.

 

What can you do if an employee withholds consent?

If an employer’s request for a report is reasonable and proportionate in the circumstances, then an employee’s refusal to consent may amount to misconduct and may therefore be grounds for disciplinary action. It is likely to be very difficult for an employer to establish that this form of misconduct is worthy of dismissal without prior warning.

 

In limited circumstances it may be possible for an employer to make a decision to dismiss for incapacity based on underlying health issues. If an employer has done all it reasonably can to obtain medical information and an employee continues to withhold their consent, then a decision to dismiss based on the limited information regarding the employee’s health may be within the range of reasonable responses open to it.