Frettens update: Employment Law Q&A – Obtaining medical reports
With the abolition of the default retirement age, there will be a larger focus going forward on having to manage capability-related issues with older employees. In this month’s Q&A we look at the legalities and issues of obtaining medical reports.
Q: In what circumstances does an employer need to request a medical report in relation to an existing employee?
A: Examples of when an employer may need to request a medical report are as follows:
* To establish whether there is any underlying medical reason behind an employee’s regular short term absence;
* To establish the prognosis and likely period of absence from work of an employee absent on long term sick leave;
* To assist an employer’s compliance with its health and safety responsibilities; and
* To assist an employer in establishing if an employee is suffering from a ‘disability’ within the statutory meaning contained in the Equality Act 2010.
Q: At what point should an employer seek a medical report?
A: In relation to an employee who is at work, but whose fitness to undertake their role appears to have deteriorated either following a period of ill-health absence or for other reasons, a report is likely to have to be sought without delay after discussing the matter with the employee. In relation to the management of an employee who has a short or long term absence problem, the factors will include the importance of the position that the employee occupies and the type of absence involved (e.g. repeated short term absence or long term absence).
Q: Who should the employer instruct to undertake the medical report?
A: The choices of whom to instruct to undertake the report are generally:
* The employee’s GP;
* A specialist doctor treating the employee;
* An independent medical practitioner not involved in the employee’s medical care; or
* The employer’s own doctor or occupational health department.
Q: Are there any specific legal obligations that the employer needs to be aware of in relation to obtaining a medical report in respect of an employee?
A: The principle legal requirements in relation to obtaining medical reports are contained in the Access to Medical Reports Act 1988 (AMRA). A summary of the main requirements of AMRA are as follows:
* When asking the employee to consent to a request for a medical report the employer must at the same time supply the employee with a written statement of their legal rights under AMRA.
* The employee must give their prior written consent both to any examination and to the preparation of the report.
* The employee must be given the option of seeing the report before it is sent to the employer.
* The employee may request (albeit he or she cannot on insist upon) changes to the report before it is sent to the employer.
* Even if all of the above requirements are complied with, the employee has the right to prevent the completed report being disclosed to the employer.
Q: What can an employer do if an employee refuses to give their consent to a medical report and/or for it to be disclosed to the employer?
A: If an employee’s contract of employment contains an express obligation to consent to a medical report and to it being disclosed to their employer, the employee is technically in breach of their contractual obligations to the employer by failing to give their consent. However, provided that the employer has done everything it reasonably can to explain to the employee the need for and purpose of obtaining a report, and warned the employee that if they do not consent a decision will have to made in relation to their employment without the benefit of medical evidence, an employment tribunal will generally accept that the employer has little option but to make a decision, including a decision to dismiss, based upon the information that it does have.