This article considers the role Occupational Health plays in supporting employees and employers. They do this by assessing employees’ capabilities in light of their job role and making recommendations to improve performance and attendance. Their advice to employers helps them make informed decisions about HR matters.
Occupational health specialists help employers support employees facing physical or mental health challenges in the workplace. For example, an employer may want to refer an employee to occupational health:
An occupational health practitioner (“OHP”) is a medical professional who will undertake an independent assessment and provide recommendations regarding an employee’s temporary or longer-term inability to work. Their involvement can lead to better (i.e. evidence based) employment decisions and more successful transitions back into work as well as reduced legal risk for the employer. An OHP’s involvement can complement medical input from the employee’s own GP by providing a work perspective as opposed to a purely medical view.
The employer will need the employee’s “consent” for the referral as anything connected with health will involve sensitive (“special category”) personal data. In addition, the employee cannot practically be forced to submit to an occupational health assessment against their wishes. There may be a clause in the employee’s contract of employment which provides a general consent for medical examinations, however, employers should avoid relying on such a clause. Consent can be withdrawn and there is a strong public policy (and best practice) argument in favour of refreshing consent each time a medical report or occupational health consultation is sought. We would therefore recommend that the employer obtains the employee’s consent, which should be recorded, and provides them with a copy of the referral form before their details are passed on to the OHP.
If the employee is reluctant or refuses, the employer should explain that it is important for them to understand the employee’s condition and the ways in which the employer can help/alleviate its impact. The employer should take contemporaneous notes of their conversation(s) with the employee and record any refusal to cooperate. If the employee remains unwilling despite the employer’s explanation, the employer can only proceed on the information it has for the purposes of making employment decisions and this, also, should be made clear to the employee.
Take a long-term absence case where there is no evidence to suggest improvement or a return to work in the reasonably near future. It is unlikely that a tribunal would find that the dismissal of the employee on the grounds of capability/absence was unfair if the employee refused to cooperate or allow the employer to obtain up-to-date medical information. One of the key factors in demonstrating fairness with respect to a capability dismissal is to show that the employer behaved reasonably; if the employee denies permission for the employer to obtain medical evidence so as to make an informed decision, it will likely count against the employee.
The earlier the better. Early referrals tend to lead to more successful outcomes, i.e. the employee returning to work quicker. By tackling the issues sooner rather than later, it may be more cost-effective to resolve, if for no other reason than the period of paid sick leave is reduced. Some employers have a “trigger” for occupational health referral after a fixed number of weeks e.g. 4 weeks or 8 weeks. Consistency and not letting things roll on without a mechanism to pick up absence cases moving into the mid-to long-term category are the key take aways even where there are no “fixed” review points.
Occupational health can also be helpful where the reason for absence is unexplained or attendance is intermittent – i.e. a few days here and there with no consistency to the symptoms complained of. The OHP’s status is independent and they can help bottom-out whether there is a common reason for the employee being repeatedly “unwell” and/or point to lines of further enquiry, if relevant. Some employees may be suspicious or reluctant to cooperate, but the employer is entitled to know the cause of absences and understand if, and how, the employee can resume work. A structured approach, with the input of an OHP/other relevant healthcare provider, is likely to be the most successful and reasonable course of action.
When preparing a referral (usually on the OHP’s standard form), it is worth remembering that the OHP does not know the employee or, necessarily, the employer’s organisation, industry sector or job requirements. Giving the OHP sufficient background information enables him or her to understand the context/workplace conditions relevant to the employee. As well as background information on the employee, the employer should provide any absence records, work history and indicate the particular tasks or requirements with which the employee appears to be struggling – for example, are there performance issues, does the employee make frequent mistakes or have poor time keeping? It may also be useful to explain what employee support has already been provided (eg physical or other workplace adjustments).
The employer should keep in mind best practice and transparency in making the referral – ideally the background information and issues raised for the OHP to answer should be shared with the employee. The information provided should also be “balanced” and as objective as possible leaving it to the OHP to draw conclusions on the basis of their assessment of the employee and the surrounding evidence.
When preparing the referral, an employer may wish to ask questions covering the following principal areas:
The OHP may ask the employee about their health, any treatment they are undergoing and/or any concerns they have about returning to work. In some cases, the OHP may need more information from the employee’s doctor or specialist care provider.
The employee is entitled to see a copy of the occupational health report and can insist on the OHP sending a copy to them before providing it to the employer. The employee can also withdraw their consent to the report being released at all which means that the employer will not receive the OHP’s advice and may have to rely on evidence they already have. It is recommended that an employer seeks legal advice before proceeding with any HR process where an employee has denied access to a medical professional’s report and/or the employer considers that they have insufficient information to make a fully informed decision.
The employee has the right to “correct the facts” (i.e. the narrative or background on which the report relies). They will not usually, however, be in a position to challenge the OHP diagnosis or views on the extent of impairment/prospects of resuming work successfully unless they counter with “specialist” medical evidence or raise a reasonable objection as to the basis for the OHP’s findings.
The more specific the questions the employer asks when making the referral, the more helpful the answers are likely to be in understanding how best to deal with the employee’s case. The employer should consider carefully the OHP’s advice and recommendations and implement them so far as possible (i.e. to the extent it is reasonable and practicable to do so). They should discuss the report with the employee concerned and, ideally, make an agreed plan to follow up with regular reviews and check-ins to assess progress.
An employer who fails to act on occupational health recommendations without good reason can be found negligent[1] and/or risks breaching their duties under equality legislation to make reasonable adjustments in the case of disabled employees.
If the occupational health report provides little or no value (e.g. is of limited assistance in dealing with an absent employee), the employer should consider obtaining another report from a different OHP or, potentially, a doctor or consultant.
Occupational health is a reactive measure, it is not preventative. Employers need to:
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Reference:-
[1] Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6 – The Court of Appeal found that where the employer is aware that specific employees are vulnerable to stress, it is important they do not glaze over the issues.
