Employee Medical Records – the importance of being clear

Posted on: August 10th, 2015

Questions about employees’ medical histories and an employer’s lack of knowledge of them leading to tragic events have been in the news in recent months. First, Germanwings’ co-pilot and most recently Glasgow City Council’s bin lorry driver.

Such events are truly tragic, and hopefully rare, but how do you obtain such medical information about an employee?

Employees have the right to not be medically examined, to see any report before the employer and to stop the report from being seen by the employer.

However, such rights do not apply if it is a one-off medical report prepared by a company doctor, occupational health physician or independent specialist because that person will not be (or have been) responsible for the individual’s clinical care.

If you have employees working in situations where their health could impact on their ability to perform their duties, it’s best to include the following in their contract of employment:

The Employee agrees to consent to medical examinations (at the Company’s expense) by a doctor nominated by the Company should the Company so require. The Employee agrees that any report produced in connection with any such examination may be disclosed to the Company and the Company may discuss the contents of the report with the relevant doctor.”

Such a clause doesn’t allow you to force medical disclosure, but the employee would breach of contract if they refused.  If you used their refusal as a basis to dismiss, you have to think about whether it would be reasonable to dismiss; which includes looking at the employee’s reason for refusing.

Often after being examined the employee wants to withdraw their consent and argue doctor/patient confidentiality applies so that the report cannot be sent to the employer.

If the employee is preventing you from knowing the true medical position, tell the employee that without that information you consider they are unfit to work and take them through an ill-health dismissal process.

When to obtain a medical report: A practical guide

  • Before employment starts, make a receipt of a satisfactory medical report a pre-condition to the offer of employment;
  • When an employee has taken a substantial number of short-term intermittent absences
  • To obtain a prognosis on condition and return to work time where the employee is on long-term sickness absence
  • To help determine whether an employee is suffering from a physical or mental impairment which might constitute a disability under discrimination law.
  • To assess whether there are any adjustments that might help a disabled employee to do their job or avoid workplace disadvantages so you can consider if such changes are reasonable
  • To consider whether an employee might qualify to receive benefits under a permanent health insurance (PHI) policy

Your next steps

We would always recommend that your employment contracts have a clause that entitles the employee to be medically examined.

In order to discuss your situation and to highlight practical ways that you can proactively reduce the potential areas of concern please call our Leon Deakin on 023 9236 4072.