Employers often find themselves in a situation where medical information is needed to determine an employee’s fitness to return to work, their fitness to continue in their present role, or their ability to attend a meeting.
Specialist occupational health (OH) practitioners are often the first port of call for employers seeking guidance. But whilst referrals to OH are commonplace, there can be conflict between the employer and the medical practitioner when the report is produced.
Employers complain of questions being left fully or partially unanswered, the report not providing any practical guidance on what to do next, or the content simply stating what the employee has said to the practitioner without any critical medical analysis being applied.
Conversely, doctors may find it difficult to deal with specific queries due to an absence of certain information about the employee’s role, the employer’s requirements, and the case history.
Here, we aim provide guidance on how best to refer matters to OH, and how to get the information you require from your OH provider.
When to refer to occupational health?
Before making a referral to OH, employers should always ensure that an up-to-date consent form from the employee has been provided. Many employers ensure there is a contractual requirement for the employee to provide such consent and to partake in a medical examination process.
In cases where such a contractual right does not exist and the employee refuses to provide consent, it should be stressed to the individual that while this will prevent the employer making a fully informed decision about the position, it will not stall the process, and a decision will be made based on available information. Therefore, the employee needs to understand that it is in their interest to consent to the referral and exactly what this will involve.
Once consent has been obtained (in the form of a signed consent document), the employer can move forward with the referral.
Common referrals are made with a view to:
- obtaining further information when an employee is on long-term sickness about the likely prognosis
- finding out if the employee’s is suffering from an underlying health condition which may be causing short-term intermittent sickness
- establishing whether or not the employee is fit to attend a meeting (for example disciplinary or performance hearing)
The importance of background information
In cases where the employer suspects there could be an underlying condition, it is prudent to obtain a medical report in order to assess whether the employee is disabled for the purposes of the Equality Act 2010; and whether or not the duty to make reasonable adjustments is triggered.
Depending on the particular issue, it is worthwhile ensuring that the exact background is given to the practitioner, either in the form of the written referral summary and/or via a telephone call to provide further details.
The essential background should include:
- the employee’s job role, hours or work and particular aspects of the work which maybe are causing the employee a problem – it is always advisable to provide a copy of the employee’s job description and to specifically request that the practitioner details those aspects the employee cannot do or which need to be modified
- the relevant history of absence, the durations, reasons given by the employee, and whether any previous reports have been provided – if so, copies of these should be provided to the practitioner
- details of any adjustments which have already been implemented and whether or not these have proved successful (and if not, why not)
- the current situation should deal with the present issue, whether that is the employee’s fitness to continue in their role, their level of absence and an indication of whether this will improve, or their fitness to attend a meeting
It is advisable to provide as much information as possible about the situation so as to ensure that the report deals with the key issues.
What questions to ask?
The key questions to ask will depend on the reason for the referral.
Here are good examples of the questions OH would expect to see:
- The exact nature of the condition(s) (if any) from which the employee is suffering, how long (approximately) have they been suffering from the condition, and how long would you expect it to last?
- What are the likely causes of the condition(s) and could it be aggravated by workplace issues?
- What treatment (if any) is the employee currently receiving for the condition(s)? In your opinion, given the medical history, how effective is the current treatment likely to be?
- Is it possible that the employee’s condition could deteriorate further?
- What medication (if any) is prescribed for the condition(s)? What is the effect of the medication and in your opinion, given the medical history, how effective is the current treatment likely to be?
- Does employee have a disability within the meaning of the Equality Act 2010. If so, what substantial adverse and long-term effects does the condition(s) have (if any) upon the employee’s ability to carry out normal day-to-day activities and what particular normal day-to-day activities are affected?
- In your opinion, is employee fit to continue working in their current role? Please provide details of what (if any) aspects of the role the employee is not fit to continue with or which duties require adjustments (by reference to the job description).
- Are there any adjustments (of either temporary or permanent nature) which could be made in order to enable the employee to return to their role?
- Do you have any special recommendations regarding the hours that the employee may be able to work and the frequency of their attendance at work, for example, if a phased return is recommended, please confirm on what basis?
- Is the employee fit to participate in a meeting to discuss their capability to continue in their current role if not, are there any adjustments which would enable the employee to participate in a discussion about their capability with us?
- Do you have any specific recommendations or observations that you wish to make which would either help in managing the employee’s employment with us?
- In your opinion, are there any types of alternative role or any changes that can be made to their current role as a [INSERT ROLE] that might enable them to continue in employment with us? Please see the employee’s job description for further details of the employee’s role.
- Is there any other relevant information or advice you feel will help us to deal with the current situation by managing the employee’s on-going employment and assisting in getting them back to work?
The importance of getting the right information
In some cases, the OH report may not deal with a key issue or will not specifically provide the employer with the guidance it requires.
In those circumstances, the employer would be well advised to revert back to the practitioner for clarification with supplemental questions for further details.
Most OH practitioners will be able to respond to these in the context of the consent that has already been provided for the report, and accordingly the employer should be able to obtain further clarity if necessary.
The recent case of HMRC v Whiteley involved an employer’s treatment of disability-related absences, and whether all or some of these should be disregarded for the purposes of its formal attendance management process.
The decision highlighted the importance for employers of obtaining medical information and advice before embarking upon a formal process.
The Employment Appeal Tribunal (EAT) in this case stressed the need for medical evidence to try and determine how often a person suffering from the relevant disability was likely to be absent in a year. The EAT suggested that disability-related absences over and above this level need not always be disregarded by an employer.
This demonstrates how important it can be for employers to work in partnership with their OH doctors, and how spending some time and money on obtaining a detailed OH report early on can be very much to the employer’s advantage by saving significant resources further down the line.
Cost-effective and useful
A good OH report is one that clearly, concisely and fully answers the questions contained within the referral.
In order to give the practitioner the best chance of achieving this aim, those requesting assistance from OH should provide full details of the background, the reasons for requesting the report, and specific questions in order to manage the case.
By following the suggested steps and ensuring practitioners are fully briefed and focused on the crucial questions the employer needs answering, OH will be in the best position to produce a cost-effective and useful report.