Tony,
The easiest way to answer your questions, I think, is to quote the relevant section from my book, 'The employment records handbook' (Directory of Social Change, 2005).
I hope list members feel that it is acceptable to publicise the book in this way.
[Starts]
You may occasionally want to obtain a medical report about an employee, for example where you are not satisfied with their stated reasons for absence on health grounds, or where you want to check their fitness for a particular task or role.
If the report is not related in any way to treatment of the individual, they have no right to see the report. So, for example, you might commission a report from a specialist purely to give their opinion on the employee's - or job applicant's - current state of health or fitness, and this could legitimately be withheld from the employee. (Note, however, that if you want to be able to insist on employees being medically examined you should make provision for this in the contract.)
You also have the option of requesting a report from the employee's or job applicant's own doctor, or any medical practitioner who has been involved in treating them. This is covered by the Access to Medical Reports Act 1988, and the employee, or prospective employee, has specific rights, including:
· to refuse consent for the employer to be supplied with a medical report, or even for the employer to ask for one.
· to have access to the report before it is supplied to the employer.
· to ask the doctor to change the report before supplying it, and to attach their own views if the doctor refuses.
The employer must tell people about their rights, and must get their consent before applying for a medical report from a doctor who has been treating them. It is strongly recommended to get this consent in writing, as you may have to prove to the medical practitioner that you have obtained consent.
The doctor must keep the report for six months, during which time the individual has the right to inspect it further. The procedure for individual access is laid down. The employer must tell the individual that the report has been requested. The individual must then contact the medical practitioner within 21 days to make arrangements to see the report. The individual does not have a right to a copy of the report, although it is common practice for a copy to be provided.
When you receive a medical report you should, of course, keep it strictly confidential, and only allow access by people who need to be involved in making any decision. Once the need for the report has passed, you do not need to keep either the report itself (which should be securely destroyed) or the consent form. You may want to keep a record of the outcome: for instance, that a report was commissioned and concluded that the employee was fit for work.
The employee also has the right, under the Data Protection Act, to apply for access to their own medical records. The employer, however, is forbidden from making use of this as a back door means of access. The Data Protection Act expressly outlaws any contractual provision which tries to force anyone to get access to their own medical records and show them to, or provide a copy to, the employer.
The result is, therefore, that you cannot get a report from the employee's own doctor if the employee doesn't want you to, and you can only insist on them going for a medical (from a doctor you commission, or from the occupational health service, for example) if your contract allows you to.
[Ends]
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
I hereby require any recipient of this message not to use my personal data
for direct marketing purposes.
----- Original Message -----
From: "Smith, Tony" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Monday, November 06, 2006 11:51 AM
Subject: Medical records/reports
We have had a query from one of our bureaux regarding an employee's
rights to refuse consent and/or to see medical records/reports before
they are disclosed to an employer. I think that I am reasonably safe in
saying that, unless a report is produced for a tribunal/court case, the
employee may refuse to disclose it. I also believe that the patient has
a full right to see all the records (on payment of fee and, subject to
fact that disclosure would not be harmful to the patient) but, I am not
sure what other rules are out there.
I assume that an employer is entitled to see some records if an employee
is regularly off work and also that the employee may ask for some
information to be withheld but, is there any information about where the
line should be drawn?
I am not so sure whether an employer can ask for records of a
prospective employee. I assume that, if they insisted on full records
they might leave themselves open to a DDA claim.
Any ideas?
I am aware that any advice given would be with the caveat that refusal
to disclose information might have an effect on the employee/employer
relationship.
Tony Smith
Information Officer
Citizens' Advice
115-123 Pentonville Road
London
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Tel 020 7833 7082
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