Hi Laura

I would be a bit careful that you do not breach Data Protection 2018 (GDPR) legislation.  (See below while still weighing this against duty of care for safety issues)

The individual has a right to know and should be consenting to what information is passed to whom ( explicit consent).

You do not it seems have his / her explicit consent to share the information with the substantive manager ( even if known to secondment manager).

I would hope your reports carry a statement to the referring manager that the information provided in the OH report is

“ Confidential and should be treated in line with Data Protection 2018 (GDPR) and not disclosed to others without the explicit consent of the individual about whom it relates”……… the secondment manager should not share the report without explicit consent any more than you / OH should. He / she is bound equally by GDPR.

Your OH recommendations would hopefully have taken into account Safety Critical as well as Safeguarding and Business Critical (judgment) …

I would suggest that you do not share the report, or encourage anyone else to do so without first getting the individual back into OH and discussing the report, the recommendations, the potential consequences of not sharing and a preference for recommendations at least ( if not full disclosure) to be made known to the substantive manager. That way the process is legal, safe, transparent and fair in my opinion.  The employee may then agree to share the recommendations part least.  

If not it is possible ( knowing how news can travel!) that the substantive manager will become aware that the person has been to OH for some reason……. And the substantive manager themselves might then be referring the person back in to OH for their own report, to check their fitness for role. Even that way is fairer than release of data without consent, which puts you in breach of legislation.

IF safety critical issues exist and you indicate this may be the case ( and the person still fails to allow any kind of disclosure despite your discussions asking for this) you would need to discuss with the individual your duty of care requirement to declare the individual unfit for that particular task/ s……. even if they do not allow consent for you to disclose the reasons. Obviously there may be consequences to this too. The Substance misuse policy would be applicable to consult and share with the individual so they can see support options. Consent for further medical reports may also be applicable in this case.

In the case of lack of declared fitness for role or part of role, the substantive manager would then probably want to refer back to OH anyway with specific questions relating to this declared lack of fitness…..

Transparent and honest discussions with the individual concerned need to take place as a priority in my opinion.

If you are being pressurized at all to do something you would rather not ( in line with your professional registration and what you know to be the law)…  I suggest you seek much higher level legal advice first.

I hope that helps and wish you good judgement.

Dear All

Your advice would be appreciated please;

An employee has been referred to OH whilst in a seconded role. The OH report was provided to the referring manager ( seconded manager). This is because the employee disclosed the use of unprescribed cannabis for medical purposes.

Within a few days though the employee was due to return to his substantive role as the secondment period had ended. He is saying that the OH report which was asked for by his secondment manager must not be provided to his substantive manager. As it will now be the substantive manager who has the responsibility to enact the OH recommendations it seems reasonable that the report is provided despite his protest due to safety reasons?

Kind Regards

Laura Pearce

Occupational Health Specialist Nurse

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