Do you know the process to follow to get an employee’s medical report? Do you know what to do if the employee doesn’t give consent?

In order to obtain a medical report, you must comply with the Access to Medical Reports Act 1988 (AMRA), which provides employers with a right to access medical reports for employment purposes provided by a medical practitioner who is, or has been responsible for, the clinical care of the individual.

Reasons

There are many reasons why an employer would like to obtain medical reports, such as

• to check if a prospective employee has a health or physical ability that affects their ability to do the job

• to understand when someone on long-term sick leave is likely to return to work

• to see if someone who takes frequent and persistent short-term absences suffers from an underlying health condition

• to determine whether an employee is suffering from a condition which would amount to a disability under the Equality Act 2010

• if they are disabled, what reasonable adjustments need to be made.

What should the report cover?

Rather than make general requests about the employee’s health or medical condition, the request should refer to the employee’s ability to do their job. It should ask specific and relevant questions and be limited to the reason for the obtaining of the report.

For example, if you have an employee who is on long-term sick leave and you are considering dismissal, you should ask specifically what their likely date of return to work is, if they have any disabilities, if there are any reasonable adjustments that could be made to accommodate their disability or if they have any specific recommendations about redeploying the employee into other available roles in your business.

Remember, an Employment Tribunal will consider whether you properly assessed the employee’s condition or illness to find out their likelihood of returning to work before you decided to dismiss them. If medical evidence is sought and it reveals that it is very unlikely the employee will be able to return to work in the reasonably foreseeable future, an Employment Tribunal is likely to deem the dismissal fair.

How does the employer apply for a medical report?

There are strict conditions which need to be met if an employer wishes to make an application to see an employee’s medical report. They must:

• inform the employee in writing of their intention to make this application
• notify the employees of all these rights under AMRA
• receive the employee’s explicit, written consent.

Employers should send evidence of the employee’s consent to the doctor when making the request.

How can the employee respond?

Employees can do any of the following:

• decline to give their employer their consent
• consent to the application and agree that the report is sent directly to their employer.
• provide their consent to the application but state they wish to see the report prior to it being sent to the employer

Is there anything that the doctor does not need to show the employee?

A doctor has no obligation to show any sections of the report that they believe may cause harm to an employee’s physical or mental health or that of others, or reveals any information about a third party who has provided information to the GP, unless the third party consents to this.

What happens if an employee refuses to provide consent?

A provision in the employee’s Contract of Employment may oblige employees to undertake a medical exam if requested and allow employers to see medical reports. Depending on the wording of the provision, the employee would be in breach of contract and face disciplinary action if they did not provide their consent. However, the employer will still need to follow the procedure in AMRA and need to make sure that the request is reasonable and proportionate.

If your contract does not allow this, you cannot force an employee to provide their consent.

If they do not consent, you should explore the reasons why. You may be able to allay their fears. For example, if they are worried that everyone in the office is going to know their private business, you can confirm that this information will remain private.

Appendix 4 of Acas’s guide: Discipline and Grievance at Work makes it clear if an employee does not give their consent, they should be notified in writing that the employer will take a decision based on the evidence they have available to them and this could lead to dismissal. This may persuade an employee to give their consent.

Are there any data protections issues that I should be aware of?

Information about employees’ health and medical conditions is sensitive personal data and as such, it falls within the scope of the Data Protection Act.

Remember, employees are permitted to make a data subject access request to access personal data held about them by their employer – this includes health and medical reports.

Please contact your Employment Law Adviser to make sure you do not fall foul of the Access to Medical Reports Act or Data Protection Act when requesting these medical reports.