Can I request a medical report for an employee?

Employers may want an employee or worker to undergo a medical assessment for various reasons, but before you request one you should be aware of the employment law implications, GDPR and data protection responsibilities as well as how to act should an employee refuse to comply.  Our Employment Law team today reviews the procedure you should follow if you want an employee to undergo a medical assessment and the additional considerations you should make.

When might an employer require a medical report for an employee?

An employer may wish an employee to undergo a medical assessment for many reasons including, but not limited to, the following:

• during recruitment to make sure the individual is physically able to do the work;
• as a prerequisite for signing the employee up for certain benefits, such as permanent health insurance;
• to determine if the employee has a disability; or
• to get advice as to whether any reasonable adjustments could be made to improve an employee’s attendance at work.

The Access to Medical Reports Act 1988

The Access to Medical Reports Act 1988 (AMRA) sets out rights and safeguards to protect employees and their medical information. If the medical report is covered by the AMRA, the employee will need to give their written consent to its preparation and disclosure. The employee must also be given an opportunity to see the report before it is sent to you.

The AMRA applies to reports regarding the mental or physical health of the employee which have been “prepared by a medical practitioner who is or has been responsible for the clinical care of the [employee].” According to this definition, medical reports produced by the employee’s GP will be covered by the Act but one-off reports prepared by a company doctor or Occupational Health specialist may not be. However, the AMRA will likely apply to a report produced by a company doctor where that doctor has previously seen the employee, or where the company doctor obtains a medical report from the employee’s usual GP.

If you wish to obtain a medical report about an employee that is covered by the AMRA, you must notify the employee that you intend to apply for their medical report and inform them of their rights under the AMRA. The employee may then:

• refuse to consent to the application;
• consent to it but ask to see the report before it is sent to you; or
• consent to the application and to the report being sent directly to you.

If the employee wants to see the report before it is sent to you, you must inform the medical practitioner that the employee wants to see the report when you apply for it. Once you have made the application for the medical report, the employee will have 21 days to request access to it. If they fail to request access within this time, the medical practitioner may assume the employee consents to the report being sent to you.

How to act should an employee refuse consent to a medical report

If the employee’s contract of employment contains a clause giving you the right to require them to undergo a medical examination and view the subsequent medical report, the employee will be in breach of contract if they subsequently refuse to do so. If your request was reasonable and proportionate, a refusal by the employee may amount to misconduct which may form the basis for disciplinary action. However, there is a risk that a tribunal will find that a dismissal for refusing to consent to a medical report was unfair. To avoid this outcome, you must be able to show that you followed a fair procedure and that dismissal was within the band of reasonable responses open to you.

If an employee refuses to provide their consent, it may be useful to first have a discussion with them before pursing any disciplinary action. Try and understand their reasons for refusing, and if there are any steps you can take to alleviate their concerns. Explain to them why you require a medical report, the extent of the information required, and the consequences of refusal. In an unfair dismissal case, a tribunal is likely to consider:

• the attempts you made to get the employee’s consent;
• your reasons for requiring the report; and
• the employee’s reasons for refusal.

Data protection and medical reports

Health data is classed as ‘special category data’ under the UK General Data Protection Regulation (UK GDPR) and is therefore subject to enhanced safeguards. Article 9 of the UK GDPR sets out conditions under which health data may be lawfully processed. Although Article 9 states that special category data may be processed when the data subject has given their consent, employers should avoid relying on consent alone due to the imbalance of power between the employer and employee. Instead of consent, you may be able to rely on Article 9(2)(b) which states that special category data may be processed where it is “necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment.” You may be able to process health data when it is necessary for fulfilling your employer obligations, such as:

• administering benefits, such as sick pay and permanent health insurance;
• making reasonable adjustments for disabled employees;
• protecting the health and safety of all employees;
• determining whether an employee is fit to return to work;
• considering the medical position when deciding whether to dismiss on grounds of ill-health.

Any medical data you receive must be processed having regard to the data protection principles outlined in the UK GDPR. For example, you should only retain data that is necessary for the purpose for which it was collected. Health data that is irrelevant, excessive, or out of date should be deleted. The data should be stored securely where only those who need to see it have access.

Medical reports can be a difficult area for employers to deal with. If you require advice on obtaining a medical report for an employee, or have questions about storing health data under the UK GDPR, contact our Employment Law Team on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.