The Role of Occupational Health Consent - (Managing Absence - Part 4)

Information from the Occupational Health Department is only relevant in identifying mitigating factors.   Medical information is required for a variety of reasons:-

• is there an underlying cause - how is it likely to affect the employee?
• long term prognosis;
• whether modifications are required or lighter duties or alternative work;
• are there social, alcohol, drug problems?
• is further investigation warranted, GP, specialist?
• is the employee fit to return to work?
• is there a connection between illnesses or is it impossible to tell?

In the latter case it is appropriate to give warnings that the level of attendance is unsatisfactory and that future absences will be closely monitored. If there is no improvement employment may be terminated.

Note there is a great deal of controversy concerning the use of medical certificates. For some years now the Government has been looking at a long term health strategy for the nation (see below). As part of such a strategy, it has looked at the use of GP’s certificates and a number of DWP reports have been conducted. Employers have long been critical of the Med3 system and the reports identify a gap of understanding between GPs and employers regarding their respective roles in rehabilitation.

Some GPs believe that absence management is not part of their job. Others suspect employers’ motivations in seeking information on employees’ health. GPs also believe that the doctor-patient relationship is paramount and perceive a conflict of interest in their obligations to their patients and the wishes of employers.

In addition, although accepting that work in some cases can be therapeutic, they do not accept that this is the case where work is low paid or low status or contributed to the health problem. Work is therefore often incidental to rehabilitation.

Discipline

Discipline is appropriate only if:-

• the employee fails to follow the procedures;
• absence is not genuine;
• the employee lies.

In other cases each employee must be treated according to the individual circumstances, eg type of work, age, length of service, alternative work, termination packages, etc. Many organisations are confused as to whether to use discipline for everything or whether to create separate policies for absence and performance. Discipline is the obvious policy for conduct and misconduct related aspects of absence or performance but managing long term absence or where there is an underlying condition is less about discipline and more about a good process and regular communication and information. It is not what the policy is called which matters but what happens within it.

Consent

One of the most controversial areas for management is gathering sufficient medical information on which to make a decision. This often proves highly controversial. In some cases employees are reluctant to consent to line management having access to medical details. In others the medical advisers are reluctant to provide detailed clinical information. However management need some information in order to make some decisions about future courses of action.

The Occupational health department has a significant but difficult role here. Such individuals are medically qualified individuals who are governed by the rules of their profession which requires medical confidentiality. They therefore have an ethical dilemma in that they regard the relationship between themselves and employees as a doctor patient relationship with all the necessary requirements of confidentiality. They cannot give management complete information on the medical condition and are governed by the rules of medical ethics. Guidance from the Faculty of Occupational Medicine and from the Nursing Midwifery Council recognises this fact.

On the other hand, they may be employed as members of management with an obligation to provide information to management to enable them to make a management decision. Thus the dilemma.

In addition data protection laws and Human rights legislation provides an employee with a right of privacy in relation to health details. Individuals cannot be forced to provide such “sensitive� data if they do not wish to and should not suffer adversely because of that. This means that unless there is an exception within the Act, that “explicit� consent from the subject is required before such information can be divulged. Explicit is not defined but would appear to require full knowledge of what such consent means and lack of any duress or penalty for refusing to comply.

The section of the data protection code on employment records includes a section on sickness records. After much persuasion the Information Commissioner conceded that absence records and sickness records might mean something different. Absence records therefore relate to numbers of occasions or frequencies of absence whilst sickness records relate to cause. It is allowable to hold the former without explicit consent as long as this is necessary for the contract of employment or some other legislation such as health and safety. Since the contract of employment is about being paid to work, clearly the employer can hold data on attendance without consent. Sickness records, however, would require consent unless used for a purpose such as paying statutory sick pay (a statutory requirement on the employer). However data protection does not allow information gained for one purpose to be used for a different purpose.

It therefore appears from data protection law, Human rights legislation and the obligations imposed on the medical profession that consent is required before information can be passed to management. It is therefore important that this is clearly explained to the employee prior to any medical taking place. Where the Occupational health professionals are internal, their knowledge is deemed to be that of the employer who is vicariously liable for what they do. Failure to pass this on to management can have devastating results for the employer who is deemed to know for instance that someone is disabled (Kapadia, London Borough of Hammersmith where even a non-internal medical profession was deemed to be acting almost as agent of the employer).

However that does not mean that this is a risk free option as recognised in the data protection code as without the relevant information an employer may not be able to make reasonable adjustments to the work, hours etc. Although lack of knowledge is no justification under disability law, it will be a relevant factor in not making a reasonable adjustment. In Hanlon v Kirkless Metropolitan Council the court ordered the employee’s health information to be provided. In Kapadia the court held that once the employee had consented to having a medical, no further consent was needed before the medical information be made available. In Elmbridge Housing Trust v O’Donoghue - the Court of Appeal held that an employee who was long term absent due to stress but refused to respond to requests for medical information was fairly dismissed. The employer could do no more in the absence of more detailed information.

Employers also need to be aware of general health and safety obligations and the potential for negligence claims where the individual falls ill, has an accident of even a nervous breakdown which might have been avoided had the employer acted sooner.

Thus the employee should be made aware of how information will be used in the management of absence and in particular in helping the employer make adjustments to the job.

The latter is very important not only in defending claims but in responding to the Government’s concerns on rehabilitation. Their feeling is that many individuals who are long term sick never return to work and their skills are lost to the economy and they cost the State in terms of incapacity benefits.

The fourth part of the data protection code on health records is particularly problematic in this area as it assumes that only Occupational Health physicians should know what is wrong with the employee. At recruitment the code suggests that Occupational Health should indicate simply fit or unfit. However this leaves the line manager with a dilemma. If the individual is unfit and is rejected for employment it is the line manager who has to defend a potential disability claim.

For existing employees the suggestion that the role of Occupational Health is to confirm whether absence is genuine is equally unhelpful as the manager should assume all absences are genuine unless there is evidence to the contrary. The manager needs to know whether there is an underlying reason for absence so he can make arrangements to deal with its consequences.