Member Article

Obtaining a medical report on an employee can be a sensitive and complex process. We set out our top tips for employers, including the key matters to include in the letter of instruction and the legal considerations they need to navigate.

When to seek a medical report

There are several situations where an employer might seek a medical report on an employee or prospective employee. For example, an employer may request a medical report as part of a pre-employment check to ensure that a job applicant is able to undertake a physically demanding role or for the purposes of admission to the employer’s health insurance scheme. 

During employment an employer may need to obtain a medical report to manage sickness absence. For instance, if an employee has a substantial amount of short-term absences, a medical report may be needed to see if the employee is suffering from an underlying medical condition. Similarly, if the employee has been absent from work for an extended period due to illness, an employer may request a medical report to determine the employee's fitness to return to work, to identify if the employee could fall within the definition of a disabled person under the Equality Act 2010 (EA) and if so to identify any reasonable adjustments that may assist the employee, or to assess the employee's eligibility for health related benefits such as permanent health insurance.

Legal considerations

When requesting a medical report, employers must weigh up several legal and ethical considerations. 

The main legal framework that applies to obtaining medical reports for employment purposes is the Access to Medical Reports Act 1988 (AMRA). This act gives individuals in some circumstances the right to see and withhold consent to the disclosure of a medical report prepared by a doctor who is or has been responsible for their clinical care, such as their GP or a consultant who has been treating them. A one-off medical report prepared by a company doctor, occupational health physician or independent specialist will not, in most cases, be covered because that person will not have been responsible for the employee’s clinical care. However, employers need to take care and consider even with such health professionals whether they have previously seen the employee and could be deemed responsible for their care for the purposes of AMRA.

AMRA sets out procedural safeguards to protect the employee, such as:

• the requirement for the employer to notify the individual of its intention to request a report, advising the individual of their rights under AMRA and obtaining written consent from the individual to the examination and preparation of the report
• the individual's right to see the report before it is sent to the employer
• the individual's right to request amendments or prevent disclosure of the report

Employers must also consider the implications of data protection legislation, such as the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018), for processing information about a worker's health. Such information will fall within special category data for which there are additional safeguards that employers must follow, including having a lawful ground for processing the data under both Article 6 and Article 9. In the employment context, it is difficult to rely on the individual’s consent as a lawful basis under either Article and therefore an alternative lawful basis under each Article needs to be found before any processing is carried out. 

Employers should follow the Information Commissioner's Employment Practices Code and Supplementary Guidance, which provide good practice recommendations on the collection, storage and use of health information.

In addition to legal considerations, employers must also consider the ethical implications of obtaining a medical report. Requests for medical information should be focused and limited to information that is directly relevant to the purpose of the request. Overly intrusive questioning or requests for irrelevant information may breach the employee's right to privacy or be discriminatory under the EA.

Key matters to include in the letter of instruction

When requesting a medical report, an employer should ensure that the request is focused and limited to information that is directly relevant to the particular purpose for which it is obtained. The amount and depth of information required is likely to vary according to the reasons for which a report has been requested. 

Requests for medical information should always be made with reference to the employee’s ability in respect of his or her job, adjustments to that job or alternative employment. An employer should provide any relevant documentation that it has relating to the employee’s job, such as a job description or person specification, together with details of any previous assessments or adjustments made to his or her duties or working conditions. If a medical practitioner is being asked to advise on eligibility for a PHI scheme or early retirement, copies of the applicable policies or scheme rules should be provided.

When instructing a medical expert to prepare a report, employers should include key information such as:

• the employee's name, address and date of birth
• the date of the accident or incident (if applicable)
• background information on the employee's job role, hours of work and any particular aspects of the work that may be causing the employee problems. It is advisable to provide a copy of the employee's job description and to specifically request that the practitioner details those aspects that the employee cannot do, or which need to be modified

Potential questions to ask the medical expert include:

• questions related to whether the employee has an underlying medical condition, the employee’s fitness to carry out their specific duties, the likely timescale for recovery and the likelihood of any recurrence
• questions to help ascertain whether the employee would be covered by the definition of disability under the EA, so for instance questions about whether there is a physical or mental impairment and if so, whether that impairment has an adverse effect on the employee’s ability to carry out day to day activities, when that effect started and how long it is likely to last
• questions about any treatment being received, along with questions about possible adjustments that could be made to assist the employee in returning to work and/or performing their duties
• questions related to potential alternatives for the employee, such as the suitability of any vacancies that exist within the organisation, or whether the employee might be suitable for ill-health retirement or PHI benefits

It is worth remembering that letters of instruction to medical experts will be disclosable if the employee subsequently brings an Employment Tribunal claim, and therefore the content of these letters needs to be carefully considered.

Summary

In summary, employers should take a careful and considered approach when obtaining medical reports on employees. They should ensure that they comply with all relevant legal requirements, including those set out in the AMRA and data protection legislation, and that they respect the rights and privacy of their employees.

 

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