In a recent tribunal case, a hospital clerk won £75k at the employment tribunal after her employer repeatedly ignored the advice provided by occupational health. In this case, a hospital clerk resigned from her role but as her reason for leaving was her employer's failure to make reasonable adjustments it amounted to unfair dismissal. She claimed that she was discriminated against, reasonable adjustments weren't made and that she suffered disability discrimination with all these claims succeeding. You can see details of the case here; https://www.personneltoday.com/hr/hospital-clerk-tribunal-occupatonal-health-reports-ignored/
So why is this case important for employers to be aware of?
In this case, the judge stated that failure to follow the advice provided by occupational health put the employee at a disadvantage. Whilst recommendations from occupational health are just that, recommendations, businesses need to bear in mind that not following medical advice could lead to situations like the above case. Employers should ensure that where they've been given reasonable and practicable advice from occupational health they follow it to ensure they don't exacerbate an employee's condition and because being honest it's the right thing to do. If employers genuinely don't feel they can put the recommendations in place, we'd advise they seek support and speak to their occupational health providers about potential alternatives available to them.
What is Occupational Health?
Occupational health services are provided by external medical professionals who can assess the health of your employees. They can be made up of a range of medical professionals including, but not limited to, doctors, nurses, occupational therapists, physiotherapists and psychotherapists. Normally businesses can pay a retainer to use occupational health services or just pay to use them as they need them. When you need an employee assessed they can be reviewed by occupational health and a report can be provided to your business outlining the findings of the occupational health provider.
You might choose to use occupational health when;
An employee is struggling with their health
When an employee has been off sick for a long period of time
When you want help to proactively manage the health and well-being of your employees
What if I don't have access to occupational health?
If you don't have access to an occupational health provider you can request a medical report from the individuals' health professionals like their GP or their Consultant. Sometimes you'll need to pay a fee and you'll need to ensure you have your employees' consent to do this.
Are there rules around medical reports that I need to be aware of?
Yes, if you've got a well-drafted contract of employment you might already have clauses and information covering how you'll handle medical reports. The Access to Medical Reports Act gives employees certain rights when it comes to seeing reports related to their health, details of the act can be found here; https://www.legislation.gov.uk/ukpga/1988/28/section/3
Employees must consent to the assessment and a report being produced. If an employee refuses to consent to a report, however, you may be forced to manage the situation based on the information you have available to you.
Do I have to use Occupational Health?
It's unlikely that you'll need to use occupational health every time someone is sick and you don't have to use them, but if you have an employee with a health concern that you're unsure how to manage it's advisable that you get some support from an HR or legal professional who may be able to advise you on whether it's a case where you need to get occupational health involved.
Where can I get more information about Occupational Health?
You can have a look at the free guide from ACAS here; https://www.acas.org.uk/using-occupational-health-at-work
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Disclaimer
All information within this post is provided for guidance only, always seek your own legal advice
The information with this post was correct at the time of publishing, August 2023 but may be subject to change
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