If an employee will not consent to a medical examination, or to the disclosure of a medical report, what can an employer do if it wants to manage sickness absence or has concerns about the employee’s health? Blake Morgan’s William Downing and Kevin Lau look at the options.
Where an employee has been absent long term, or has had a series of short-term intermittent absences, the employer may want to obtain a medical report either for a prognosis or to establish the medical position where dismissal is being contemplated.
This is an important step to take because case law has established that where an employee is dismissed without medical evidence to support the employer’s decision, the decision may be unreasonable.
Alternatively, the employee may be in work but there may be a concern about their ability to carry out their role, either because of an existing or suspected medical condition. In such a situation, an employer will want to consider both the employee’s current level of fitness and their likely future ability to carry out the job.
Obtaining a medical report
The Access to Medical Reports Act 1988 will apply in cases where a medical report is being sought from a medical practitioner who is, or has been, responsible for the clinical care of the individual.
Any request for an employee to undergo a medical examination should be both reasonable and proportionate. The employee should also be given the necessary information at the outset, including: the nature, purpose and extent of the medical assessment; the use to which the employer will put the report; and the right for the employee to see the report before it is released to the employer.
If the employee refuses to provide consent to undergo a medical examination or to the report being released, the employer should explore the reasons why. It can then consider what steps to take to address the employee’s concerns, such as having parts of the report dealing with previous illnesses redacted.
Consider also the employee’s contract of employment, which may contain an express right for the employer to require them to undergo a medical examination, and refusal would mean a breach of contract or even misconduct. Sickness policies may also contain a similar provision.
Discipline or dismissal
Where an employee steadfastly refuses to consent to a medical examination or to provide the employer with a copy of the report, and the employer wishes to pursue its disciplinary or capability policy, a decision to dismiss based on the evidence available could still potentially fall within the band of reasonable responses.
Indeed, Appendix 4 of Discipline and grievances at work: The Acas guide states that where an employee refuses to provide consent, they should be informed in writing that the employer will make a decision based on evidence available and that it could result in the employee’s dismissal. Often, this is enough for the employee to consent to the provision of the report.
Employers should consider strategies for allowing employees to come back to work, including phased returns, any assistance the employee may need, whether or not the job could be redesigned, and if any reasonable adjustments are required.
Dismissal should be a last resort, as the employer will have to satisfy an employment tribunal of the fairness of its decision, and what is fair and reasonable will usually depend on the facts of the case.
Practical tips on obtaining a medical report
- Where there is a pattern of short-term sickness, or where there may be an underlying medical condition affecting the employee’s performance at work, employees should be encouraged to seek proper medical attention to establish the medical position.
- The employer should ensure that any medical evidence obtained is placed on the employee’s file and is kept securely and is up to date.
- Medical requests should always be about the employee’s ability in respect of their job.
- Written permission should always be obtained before a report is sought and the reason for any refusal should be explored.
- Employees should be provided with the information required under the Access to Medical Reports Act 1988, and advised of their right to refuse consent.
- If consent is refused, and the employer is considering dismissal, it should be explained to the employee in writing that the employer may need to make a decision based on information available to them.
- Any dismissal should be carried out only after other options have been explored (including reasonable adjustments), and in accordance with the employer’s policies and Acas guidance.