Are
pre-employment health examinations a waste of OHPs’ precious time or a
cornerstone of their practice? The appropriate use and legal implications of
such examinations are investigated, by Kit Artus
Pre-employment examinations are viewed by some as the keystone of
occupational health practice, but are they? The routine examination of the
general population, which is generally fit and reasonably healthy, can take up
an inordinate amount of energy and deflect time from proactive work designed to
protect and promote the health and safety of the majority of the employed
staff.
It may be argued, however, that a pre-employment health test establishes
baseline data and provides an opportunity to promote occupational health and
safety. Presenting occupational health topics at an induction programme, and
offering management and risk-focused training, demonstrates that occupational
health is proactive and helps ensure the speciality reaches the majority of
staff and not just the minority of applicants.
Self-administered questionnaires
A pre-employment self-administered questionnaire, which is scrutinised by a
qualified occupational health doctor or nurse (OHP) for the majority of cases,
is sufficient. It can be argued that for low-risk environments and occupations,
a targeted health declaration is sufficient. The designed and focused health
declarations can be scrutinised by a trained reviewer with the facility to
refer ‘negative responses’ or final selection applicants, if it is company
policy, to an OHP. This first level health declaration for low risk occupations
releases time and scarce resources for proactive and promotional occupational
health work.
The HSG’s Understanding health surveillance at work1 recommends that more
complex investigations need to be undertaken only in the following
circumstances:
– The job requires the worker to enter a hazardous environment to which he
or she has not previously been exposed (eg compressed air, deep sea diving,
ionising radiation, lead, etc)
– The work presents specific hazards to the community at large (eg
transport, healthcare, catering, etc)
– The work demands high standards of physical or mental fitness (eg police,
fire service, etc)
– Industries where there is a statutory obligation to examine employees
medically before they start work (eg work with compressed air, work involving
exposure to ionising radiation and lead, etc)
Pre-employment examinations involve an assessment of the applicant’s health
in relation to the risks of the proposed job. The OHP assesses and identifies
specifically job-related defects (previous high exposure to a dangerous
substance, allergy to a substance, etc).
One main driver for pre-employment examinations is that employers are
reluctant to appoint applicants if their general health is such that they are
likely to be off sick for substantial periods. However, completing a general
pre-employment examination (not risk driven) is no guarantee that it will
predict, reduce or prevent absence or identify high-risk applicants. Employers
recognise that established employees may fall ill, but they do not want to take
on ‘bad risks’. In reality, in a time of high unemployment, employers may be as
selective as they wish.
Does an applicant have to answer the questions?
Apart from statutory restrictions, an employer is free to pose questions or
require examinations. There is no obligation on a job applicant to volunteer
information (unlike an insurance application), therefore any health declaration
or occupational health questionnaire should be relevant to the job risks,
demonstrating the practical need for relevant occupational health job risk
assessments. The applicant is free to refuse to answer, but this would be a
hollow freedom if they ended up not getting the job.
Issues of confidentiality
The legal implications of not keeping client information confidential could
be:
– Breach of the Data Protection Act
– Breach of contract – implied duty of mutual trust and confidence
– Possible misrepresentation under the Misrepresentation Act 1976
– Breach of professional ethics
When an employer engages or retains an OHP to provide occupational health-
care to those gainfully employed, the question of confidentiality of health and
medical records and to whom the records belong, can be contentious. Areas of
possible contention between the employer and the occupational health
professional are:
– Management wanting detailed information held on the records or details of
any diagnoses
The objective for the OHP must be to provide sufficient information for the
manager to manage safely – eg estimated period of absence from work, capability
on return, likelihood of recurrence, significance of the Disability
Discrimination Act, etc.
– The employer’s legal representatives can be challenging
When do the records become disclosable between the employer and employee’s
legal representatives? The employer’s legal representative can argue that the
records are the property of the company; therefore they have a right of access.
However, the records are the property of the company but the information is
not.
The employee can refuse consent for either party to have the records and
then it is up to the courts to subpoena those records, or the employee can
provide written and informed consent for their legal representative to have the
records or a copy. Once this is done the information is disclosable and the
legal advisers will deal with the issue.
All occupational health information, obtained on an individual in the
context of a doctor or nurse-patient relationship, is regarded as the property
of the individual and is confidential. An OHP should take care about divulging
such information to third parties, as Dorothy Ferguson makes clear in her
article in the September issue of Occupational Health.
There is also an obligation on the OHP to maintain all records in confidence
and to ensure other people who are not entitled to do so do not access them.
Legal gymnastics
Where an employee or job applicant is required to undergo an examination,
either under a statutory requirement or because of company policy, this should
be referred to in the contract of employment.
The relationship between the employer and the OHP is challenging. The OHP
has no contract with the employees of the company but the work and services
provided may have a profound effect. The OHP may also be responsible for
advising the company and the public on the hazards and risks of the product/s –
an area of potential ethical conflict.
The common law may deem employers negligent if they do not assess and impose
reasonable standards of health and fitness, mental as well as physical.
In Kapfunde v Abbey National plc and Dr Daniels, 19982 the Court of Appeal
held that an independent OH physician does not owe a duty of care to a job
applicant when carrying out a pre-employment assessment of a completed medical
questionnaire, even if it was reasonably foreseeable that the job applicant
would suffer financial loss if a negligent medical assessment was carried out
due to insufficient proximity.
"The existence of a duty of care not to make a negligent mis-statement,
and the identity of the persons to whom that duty is owed depends upon the
circumstances. A duty of care will generally be owed to the person to whom the
statement is made and who relies on the report. In the case of a medical report
this is normally the person who commissions the report, not the subject of
it."
The Court of Appeal held that the OHP is in much the same position as a psychiatrist
or social worker retained by a local authority to give advice on whether a
child should be taken into care. No duty of care is owed to the child even
where the provisions of that advice involve interviewing and examining the
child.
In Baker v Kaye, 1997, a year earlier, the High Court held an OHP did owe a
duty of care to a job applicant, as there was sufficient proximity between the
parties to give rise to a duty of care. The judgment in Baker v Kaye was
overturned by the Kapfunde v Abbey National plc case.
OH risk assessments
Added to the above challenges are the requirements for compliance with
health and safety legislation. As stated in the Management of Health and Safety
at Work Regulations 1999, Regulation 6 – Health Surveillance3:
"Every employer shall ensure that the employees are provided with
appropriate health surveillance having regard to the risks to their health and
safety, which are identified by the assessment."
In essence the completed risk assessments will identify circumstances in
which health surveillance, including pre-employment examination, is required by
specific health and safety regulations (eg Control of Substances Hazardous to
Health 1999, etc). Health surveillance should be introduced where the
assessment shows the following criteria apply:
– An identifiable disease or adverse health condition related to the work –
biological, chemical, ergonomic, physical and/or psychological
– Valid techniques are available to detect indications of the disease or
condition
– A reasonable likelihood that the disease or condition may occur under the
particular conditions of work
– Health surveillance is likely to further the protection of the health of
the employees covered
– Identification and protection of individuals at increased risk – the
vulnerable, the pregnant and young workers
The complete five-step approach to general risk assessment can be adapted to
assess OH risks.
In essence there are three basic steps to a health surveillance needs
assessment (see tables):
– What are the identified health risks?
– What controls are in place?
– What are the OH issues?
Conclusion
The prudent employer should ensure that all applicants are informed of
identified OH and safety risks at the time of interview. With OH needs assessments,
a clear management strategy should be designed to direct scarce resources into
protecting the health of the majority of staff. OHPs need to continue to
challenge the accepted traditions and move from the ‘comfort zone’ of
pre-employment assessments to risk management concepts.
Kit Artus, Operations Director, Cheviot Artus Plc
References
1. HSG 61 Understanding health surveillance at work
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2. OH Law. Diana Kloss. ISBN 0-632-04263
3. Management of Health and Safety at Work Regulations 1999
