Legal Q&A: health screening

Health screening is working its way up the government’s agenda and earlier this month, health secretary Alan Johnson unveiled a new scheme to offer health screenings for everyone aged 40 to 74.

Based on the old philosophy that ‘prevention is better than cure’, the scheme aims to identify a number of illnesses that currently kill more than 170,000 people a year, such as heart disease, stroke, diabetes and kidney disease.

But what about another old saying – ‘search and you shall find’? If, for example, a senior employee is diagnosed with a heart problem, can they demand a new, different, more suitable, and perhaps less stressful, role? What are the legal implications for employers towards their, newly discovered, ill employees?

Q If an employee, following such a healthcheck, discovers, for example, that they have a heart disease, can they demand a less stressful job?

A An employer has a duty to protect the health and safety of its employees. Once managers know, or ought to know, that an employee’s work is having, or could have, a detrimental effect on their health, the employer should carry out a risk assessment with a view to eradicating that detrimental effect.

Where an employer is made aware that an employee has a condition, such as heart disease, that makes them more susceptible to the stresses of a job, then there is a greater onus on the employer to seek to reduce those risks.

Therefore, in such a situation as that outlined, if the employee can demonstrate that the job is stressful and puts the employee’s health at risk, then if the employer fails to move the employee or make adjustments to the job, the employer could be liable for any resultant personal injury.

Q On the other hand, if the employer discovered that an employee had a health problem, could the employer recommend a more suitable role within the company or would that be discrimination?

A In addition to any liability, an employer has a duty to make reasonable adjustments if an employee’s health condition constitutes a disability. If an employer believes they should move a disabled employee they could be discriminating if they do not first consider whether there are any adjustments that could be made to the existing role. The best way to do this would be through consultation meetings with the employee in conjunction with obtaining appropriate occupational health advice.

Q Should we be carrying out our own health screening internally?

A This is not a legal requirement, but there are obvious benefits to early detection of potential problems and at risk employees. Prevention of illness and early treatment could be much less costly to employers than only dealing with the issue once the employee is already on long-term sick leave.

Q Can we demand that all employees participate in health screening?

A An employer has to have a contractual right to compel an employee to undertake a medical examination. If there is no such contractual right then you may seek to amend the contract. To do so unilaterally would need consultation and a sound business reason such as the employer has a bad sickness record amongst its employees and this is a proactive step to improve that record. You may try and agree the contractual right by offering a benefit in exchange, such as medical insurance.

Q Are there any confidentiality issues?

A procedure should be drawn up to ensure that only those who need to see the report. Such a report would be governed by the Data Protection Act as it contains sensitive personal information.

Q It sounds like this new initiative might affect the premium of the medical insurance we currently give employees. Can we cancel it or phase it out? This is likely to be a contractual benefit. Therefore, to unilaterally phase it out or cancel would be a breach of contract. Again any such action would require consultation and a sound business reason. However, if such screenings lead to the earlier diagnosis and treatment of illness there may be no actual increase and even if there is the cost should be offset in the savings on the cost of employee absence.

Stuart Jones is employment partner at Weightmans

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