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Phone: 07795 214 663

Occupational Health legal guidance

1. Your legal obligations.

As an employer you are legally required to have a record of:

  • Knowing.  That you have identified an employee health condition or a risk to their health when you could reasonably have been expected to do so.
  • Assessing.  That your employee’s health condition or risk has been assessed by an appropriately trained person.
  • Controlling.  That you have taken all reasonably practical steps to adjust for any health conditions or to control for any risks.
  • Monitoring.  That you are monitoring for any change in the health condition or health risk and for the adequacy of controls.

These requirements apply whenever your employee is on company business; whether they are on site, homeworking or travelling.  They originate from; your ‘common law’ duty of care, implied terms in employment contracts and regulation.

 

1.1. The main regulations.

1.1.1. The Health and Safety at Work etc Act 1974.

You have a duty to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all your employees.

1.1.2. The Health and Safety (Display Screen Equipment) Regulations 1992.

For employees using DSE daily and / or continuously for an hour or more (regardless of who provided the DSE) you must:

  • Provide; DSE, a working environment and a computer interface which meets minimum defined standards1.
  • Provide adequate health and safety training in the use of the DSE and whenever the DSE is substantially modified.
  • Have adequate procedures, including DSE Assessments, to identify health and safety risks and reduce them to the lowest extent reasonably practicable.
  • Plan your employee’s work activity to ensure they take adequate breaks or changes of activity.
  • Fund an eyesight test if requested or whenever visual difficulties are being caused by DSE work and provide corrective equipment where required specifically for DSE work.

1.1.3. The Management of Health and Safety at Work Regulations 1999.

You must appoint a suitably competent person to identify health and safety risks, assess the significance of the risks (likelihood of occurrence x impact should they occur) and take reasonable precautions to control them.

You will almost certainly have completed a risk assessment at an aggregate; company, site, team or job description level, but where this fails to adequately control risks for a particular employee, you will be expected to conduct an individual employee risk assessment as well.  Such as:

1.1.4. The Equality Act 2010.

The Act has two main effects as it relates to the health of your employees:

  • In order to minimise any opportunity to discriminate against disabled job applicants, you are forbidden from requesting information about their health or sickness absence history until a job offer is made (scroll down to the section on “Pre-Placement Health Screening” for further information).
  • You must make reasonable adjustments where you know, or ought reasonably to know, that an employee has a long-term health condition which substantially affects their ability to perform in their role.  The Employment Tribunals are constantly shaping the application of the Equality Act and define:
    • “Ought reasonably to know” as something less formal than a GP fit note.  Having processes to obtain information  about an employee’s health condition, such as health declaration forms, is insufficient if you do not also have an organisational ability to identify and act upon clues from your employee’s behaviour, their attendance, or disclosures to line managers3.
    • “Substantial” as any condition which currently affects your employee’s ability to do their job or which might do so in the future.  As one lawyer comments: “…tribunal judges have set the bar lower than the word ‘substantial’ might imply”.  For example; an employee leading a healthy lifestyle and feeling no effects from their mild Type 2 diabetes is defined as disabled because there is a theoretical (but not inevitable) risk that Type 2 diabetes can progress to Type 1 diabetes at some point in the future4.
    • What is “reasonable” as something more demanding than you might deem as acceptable to your organisation or to your team.

Because of the application of the Equality Act, legal advisers recommend that employers:

  • Are diligent in assessing adjustments for any employee health condition (scroll down this page to the section on “What adjustments are reasonable?” for further information).
  • Only withdraw conditional employment offers or dismiss on grounds of health as a very last resort.

1.1.5. The Data Protection Act 2018.

The Information Commissioner’s Office provide employer guidance on processing employee health information which can be summarised into 4 key points as follows5:

  1. You must have a strong and convincing legal basis for processing health information.
  2. You should rely upon self-declaration rather than medical examinations wherever possible.
  3. Employee health information should only be processed by an Occupational Health professional who will interpret the information and make recommendations to the employer.
  4. The ICO provide some guidelines for when employers have to process employee health information themselves.

Scroll down to the section on “Processing Employee Health Information” for more detail on these 4 key points.

Health professionals are also subject to the following legal obligations and best practice standards to ensure employee health information is only disclosed to those with the correct permissions or legal right to see it.

  • Access to Medical Reports Act 1988.
  • Access to Health Records Act 1990.
  • Information Government Alliance. Records Management Code of Practice for Health and Social Care 2016.

1.2. How OH help you to comply.

Employment tribunals are the final arbiter of whether you have taken all reasonably practicable steps to comply with your legal obligations.  Tribunals appear to award against employers for two reasons:

  • Often, employers failed to follow their own policies and procedures designed to identify health conditions when they would be reasonably expected to do so and to make adjustments when health conditions are identified.  Bringing in an experienced OH Specialist Practitioner to supplement the often limited availability and sometimes conflicted intentions of line managers and HR when managing a case of employee ill health can help ensure that company policies are more than complied with.
  • Less often, the employers’ own policies and procedures are inadequate.  For example, signposting a struggling employee to an Employment Assistance Programme (EAP) rather than referring them to OH fails the reasonable standard because the EAP provider will not; assess health risks, recommend adjustments or ensure that the employee’s health at work is subsequently monitored and managed.

2. Processing employee health information.

Five key points for processing employee health information.

Italicised text are verbatims taken from the ICO’s guidance to employers regarding “information about workers’ health6”:

 

Point 1: You must have a strong and convincing legal basis for processing health information.

  • Employers should bear in mind that health information can be particularly sensitive, that its obtaining can be particularly intrusive and that significant intrusion will not normally be justified unless the employer’s business is at real risk of serious damage.
  • The benefits gained from processing employee health information should justify the privacy intrusion or any other adverse impact. In other words, processing employee health information must be a proportionate response to a particular problem.

In practice this means you should satisfy one of the following criteria prior to processing employee health information:

  • Evidence that the information has been manifestly made public by your employee.
  • A court order where the information is required for the establishment, exercise or defence of legal claims.
  • Employee consent. To be valid, consent must be: Explicit. means the worker must have been told clearly what personal data are involved and have been properly informed about the use that will be made of them. The worker must have given a positive indication of agreement, e.g. a signature.  Freely given means the worker must have a real choice whether or not to consent and there must be no penalty imposed for refusing to give consent.

Relying on consent is not enough because of an imbalance of power between yourself and your employee, so authorities including the ICO require that you should also have at least one other lawful basis7 such as:

    • To determine the worker’s entitlement to health related benefits, e.g., sick pay, permanent health insurance.
    • To determine a particular worker’s fitness for carrying out his or her job.
    • To comply with your legal obligation to control for health and safety risks to your employee or risks that the employee may pose to colleagues, customers and the public.
    • To comply with your legal obligation not to discriminate against workers.

Point 2: You should rely upon questionnaires rather than medical examinations wherever possible.

Employers should ensure that the intrusion is no more than absolutely necessary and consider alternatives to minimise intrusion, e.g., can health questionnaires rather than tests be used?  Review any health questionnaires to ensure that only information that is really needed is collected.

 

Point 3: You should use an OH practitioner rather than process employee health information yourself.

In general, you should not process employee health information:

  • Can access to health information be limited so that it will only be seen by medically qualified staff or those working under specific confidentiality agreements?
  • Is the processing for medical purposes, e.g. the provision of care or treatment, and undertaken by a health professional or someone working under an equivalent duty of confidentiality?
  • Ensure that wherever practicable only suitably qualified health professionals have access to medical details.
  • Managers should not have access to more information about a worker’s health than is necessary for them to carry out their management responsibilities. As far as possible the information should be confined to that necessary to establish fitness to work, rather than consist of more general medical details.

An OH practitioner should interpret the information and make recommendations to you:

  • Decisions on a worker’s suitability for particular work are properly management decisions but the interpretation of medical information should be left to a suitably qualified health professional.
  • Leave the interpretation of medical information to those who are qualified to do this.
  • Employers should seek information on the worker’s fitness for continued employment rather than medical details.
  • A medical report should contain only the information required for the employer to fulfil their legal responsibilities. If the employee has any health condition, the employer may only need to know:
    • Whether it constitutes a disability.
    • Will it impact the ability to perform a defined role.
    • If reasonable adjustments at work need to be made8.

In practice, the OH practitioner will describe confidential employee health information in terms of functional effects, e.g., levels of; mobility, dexterity, vision, hearing, speech, continence, concentration, memory, learning and understanding.  For example;

    • “Severe depression and anxiety” may be described as: “your employee’s condition results in a significant reduction in mental and physical stamina and the ability to concentrate on problem solving and physical tasks.”
    • “Sciatica” or “Arthritis” may be described as: “your employee’s condition limits mobility and ability to sit for periods of more than 30 minutes. Any work carried out in a bent or awkward posture or lifting moderately heavy loads should be avoided.  Your employee should also be given the opportunity to move and stretch every 30 minutes”.

Point 4: The OH practitioner must maintain confidentiality of employee health information.

OH practitioners should follow General Medical Council guidance to give your employee the opportunity to check through reports before they are released to you and request the:

  • Deletion of confidential information which they do not wish to disclose to you.
  • Correction of factually inaccurate information.

The ICO expect you to respect the confidentiality of information processed by OH:

  • If workers are allowed to use telephone or e-mail for confidential communication with their occupational health service, do not compromise this confidentiality by monitoring the contents of these communications.
  • If the retention of medical information is necessary only for the operation of an occupational health service, it should be kept in a confidential occupational health file.

The General Medical Council, Royal College of Nursing and Nursing and Midwifery Council agree on exceptional situations where OH practitioners should not maintain confidentiality, including:

  • Where the OH Practitioner deems it unequivocally in the public interest, to protect the safety of others (e.g., a truck driver is epileptic or driving under the influence of drugs or alcohol, an employee is carrying a transmittable disease or has a mental health condition such that they may become violent).
  • Where the OH Practitioner deems it clearly in the patient’s interest, to ensure their safety from themselves or others (e.g., high risk of suicide, victim of abuse).
  • Where instructed by law or a court order.
  • To safeguard national security or to prevent a serious crime.

In such instances health professionals will still only disclose the minimum necessary information.

The means of complying with data protection regulations and guidelines are complex.  OH practitioners should be masters of this complexity and operate processes which are compliant without being overly restrictive and cumbersome.   In this way, an OH practitioner can help you minimise the cost of compliance.

For further information about maintaining confidentiality and other aspects of data privacy, here’s a link to our Privacy Statement.  You can also find a link to this document in the footer of this page.

 

Point 5: The ICO provide guidelines for when you do have to process employee health information yourself.

 If commissioning a medical report on a sick employee:

  • Health information that is excessive, irrelevant or out of date should not be retained by an employer. If the GP gives you more than you need you are obligated to delete what you don’t need.
  • Patients are in control of any information released to an employer, and they have the right to review and ask for changes before it is submitted to an employer, including the withdrawal of consent.

Unless the general standard of information security in your organisation is sufficiently high, medical information about workers should be separated from other personnel information, for example by keeping it in a sealed envelope, or subject to additional access controls on an electronic system.

3. Pre-Placement Health Screening.

3.1. Prohibition on requesting health information.

Section 60 of The Equality Act places a general prohibition on requesting health information during the recruitment process, prior to making a job offer.  So you could make a job offer unaware that your new starter has a health condition which:

  • Renders them unable to perform a fundamental or intrinsic requirement of the job. Examples might include a Scaffolder with a disability which renders them unable to climb a ladder or an HGV driver who has un-correctable impaired vision.
  • Breaches your legal obligation to control risks to the health, safety and welfare of your new starter, colleagues, customers and the public. Examples might include an employee at risk of seizures or a severe allergic reaction which requires urgent action by designated colleagues.
  • Breaches your legal obligation to make reasonable adjustments for a disability under the Equality Act.

The Equality Act does allow an exception to the general prohibition in order to assess health conditions preventing the applicant from performing an intrinsic requirement of the job which cannot be accommodated with reasonable adjustments.

The Equalities Act also allows other exceptions to the prohibition.  They don’t relate to health assessment but we list them here for the sake of completeness:

  • If a particular disability is actually an occupational requirement of the job.
  • To identify the need for any reasonable adjustments during interview and any recruitment tests / case study exercises.
  • To monitor the diversity of people applying for the job.
  • To positively discriminate with respect to health, i.e., to treat disabled applicants better than non-disabled applicants.

3.2. Approaches to requesting health information.

You might:

  • Include the intrinsic requirement as a screening question on the job application form.
  • Request the health information at interview.

However, these two approaches are prior to the job offer which means you are prohibited from requesting information to assess whether the intrinsic requirement can be accommodated by reasonable adjustments.  Depending upon these approaches alone creates a risk of breaching your legal obligation to identify reasonable adjustments.

Instead, you might also make the job offer conditional upon the outcome of pre-placement screening.  This approach has two key advantages:

  • You can request additional health information to identify:
    • Needs for reasonable adjustments.
    • Pre-existence of health conditions which can also be caused or aggravated by the job.  It might prove to be a valuable insurance in the event of any future claims for occupational injury.  This is often referred to as “baselining”.
  • The assessment is conducted by an experienced and qualified Occupational Health Practitioner who is:
    • More likely to identify a need for adjustments.
    • Able to ensure the information requested complies with other applicable regulation, in particular the Data Protection Act.

3.3. Approaches to pre-placement health screening.

3.3.1. Health Questionnaires.

Questionnaire based screening is:

  • Sufficient for lower risk jobs (e.g., office-based).
  • Quick and cost effective, especially for; SMEs, companies outsourcing their OH needs and organisations with a widely distributed or remote workforce.
  • Recommended by the ICO in preference to a medical examination, or as a means to select those required to undergo a medical examination.

3.3.2. Medical Examinations.

Medical examinations can include:

  • Lung function and / or skin sensitivity testing for jobs involving baking, painting or insulating.
  • Audiometry testing for jobs on factory production lines.
  • Hand arm vibration (HAV) testing for jobs involving the operation of machinery.

Certain occupations are subjected to regulation and codes of practice which can include a requirement for specialist medical examinations.  They include:

  • Health care professionals.
  • Professional drivers (LGV, train, lift truck).
  • Flight crew.
  • Emergency services personnel (Police, Firefighters, Ambulance, Coastguard).
  • Food handlers.
  • Confined spaces workers.
  • Workers at heights.
  • Safety critical workers.
  • Offshore crew.

They are typically the highest risks jobs where specialist medical examinations can be worth the investment given the inherently higher materiality of breaches to your legal obligations.

A specialist medical process can take some time to conclude; good practice is to conclude within 6 weeks of your new starter taking up their job.

4. Compliant Management Referral Forms.

Data Protection regulations and codes of practice require that the scope of the OH assessment is restricted to the questions you ask on the Referral Form and for which you have obtained your employee’s consent.  The OH Practitioner will:

  • Refuse to answer any “off the record” questions such as checking for the smell of alcohol or cannabis.
  • Only expand the scope of the assessment if your employee wishes for that to happen (e.g., because they wish to disclose information about their condition or treatment which was not previously known to you, to assist in the assessment and to inform any recommendations).

Your OH provider will normally help you to:

  • Define specific and unambiguous questions about your employee’s medical fitness for work (which is for the OH Practitioner to assess) and avoid questions about your employee’s competencies, skills and experience (which is for the line manager to assess).
  • Ensure that the validity and relevance of each question can be justified. Questions about your employee’s work attendance and performance are likely to be relevant whereas, questions about your employee’s personal life are not.
  • Avoid questions requesting details of your employee’s health and medication; such details are subject to employee confidentiality.

5. Homeworker DSE Assessments.

The HSE are clear that your legal obligations continue to apply when your employee is working from home9.  This prompts the following questions:

Question 1:

“Must I arrange a DSE Workstation Assessment for all my homeworkers?”

Answer 1:

The HSE state that home DSE Workstation assessments are not required for employees working from home temporarily. Unfortunately, we are unable to find any regulatory or code of practice definition of “temporary” homeworking.  The closest approximation is a Unison distinction between “ad hoc” and “regular” homeworking where regular homeworkers spend 50% or more of their contracted hours working from home10.

Question 2:

“Must I ensure that a homeworker DSE Workstation assessment is always performed by someone with adequate information, instruction, training and supervision?”

Answer 2:

The HSE state that “employers should provide workers with advice on completing their own basic assessment at home” and also provide a self-assessment checklist which they state: “may help employers provide their employees with advice on completing their own basic assessment at home11”. However, guidance from one employment lawyer is that relying on self-assessment without informed training and supervision fails the minimum requirement to adequately control health and safety risks under the Health and Safety at Work Act 1974, because it will allow too many instances where:

    • Homeworkers do not conduct the self-assessment, or they fail to identify a risk or they fail to document and report it.
    • Employers do not notice when a homeworker has identified a risk or do not take the required action when they do notice.

The precise answer to this question probably awaits clarification when a relevant case finds its way to an Employment Tribunal.

Question 3:

“Must I address, at my cost, any aspect of the home DSE Workstation configuration which risks or is causing discomfort or musculoskeletal injury (e.g., a dining chair)?”

Answer 3:

One argument is that the Health and Safety at Work Act (1974) only places obligations on employers as far as it is reasonably practicable to do so and that it is unreasonable to expect employers to address every home working arrangement which risks or is causing discomfort and musculoskeletal injury.  The same commentator also points to Section 2(2)(d) of the Act which, when read in isolation, limits the employer’s obligations to “any place of work under the employer’s control” which apparently frees the employer from any obligation regarding DSE located in the employee’s home.

An alternative argument is that the wording of the Act reflects an age when homeworking wasn’t a consideration.  Recent statements from the HSE suggest that the Act is due for an update:

  • “Employers have the same health and safety responsibilities for employees working from home as for any other employees, including the duty not to charge for things done or provided pursuant to their specific requirements. If you have staff working at home, you must still manage the risks to their health from display screen equipment (DSE).12
  • “… companies need to make sure their (homeworking) staff have the ‘right kind of kit’ to prevent issues such as back injuries sustained from hunching over laptops.”
  • “… if companies need to provide particular kit and facilities for their employees to work from home safely and without injuring themselves, then ultimately they will need to do that and we will take enforcement action if they are unable to do that or choose not to.”

In the meantime it would be unwise to fall back on a literal interpretation of a single, out of date, Act and leave it to employment tribunals to determine whether that was sufficient to comply with all of your legal obligations.

6. How to use your OH report.

Every OH assessment will generate a report and most reports will include recommendations.  Here’s how to decide which recommendations are worth implementing.

6.1. Have an initial conversation.

Good practice is to use your OH report as the basis for a conversation with your employee where you discuss each recommendation and any other ideas for adjustments and support which the discussion might generate.  You might:

  • Agree which recommendations are reasonable, balancing the degree to which the adjustment is:
    • Likely to provide effective assistance for your employee.
    • Reasonable for your business to implement (scroll down to the section on “What adjustments are reasonable?” for further information).
  • Agree how reasonable adjustments will be implemented. What actions are required, who will own them and the target date for their implementation.  Bear in mind that:
    • Some actions can only be taken by the employee (e.g., contacting the EAP, accessing self-help resources, attending training courses, etc).
    • Actions requiring support from others within the team or outside of the team such as HR might require you to take more responsibility than normal in order to avoid aggravating your employee’s health condition (e.g., in instances of stress, autism, etc).
  • Agree to follow-up meetings to review progress and agree any further actions.

6.2. Create an action plan document containing:

  • The decision you have taken on each recommendation and its underlying reasoning (especially where you decide that an adjustment is unreasonable or there is a point of disagreement with your employee).
  • For agreed, reasonable adjustments, the owner and target implementation date.

The action plan is a powerful vehicle for flushing out any misunderstandings and ambiguities and because things are written down, they are more likely to be actioned.  In a worst case scenario, the document should be your friend in the event of; an internal grievance, involvement of legal advisors, recourse to ACAS dispute resolution services or ultimately, escalation to employment tribunal.

6.3. Have follow-up review meetings.

  • Keep to an agreed schedule for the review meetings. They could become an additional agenda item at regular 121s.
  • Review the effectiveness of each action implemented so far and agree any changes to the actions or target implementation dates if necessary.
  • Hold both yourself and your employee accountable for progressing your respective actions. 

Use the action plan document as a living document where you record your review meeting conclusions and decisions.

7. What adjustments are reasonable?

7.1. Obligations to make reasonable adjustments.

If your employee’s health condition meets the definition of a disability under the Equality Act 2010 then you are required by law to “take such steps as it is reasonable” to make adjustments so that your disabled employee can continue to work.

If the health condition does not meet the definition of a disability you might still choose to make reasonable adjustments because of your obligations to take all reasonable steps to:

  • Prevent your employee’s health condition from being aggravated or worsened.
  • Protect your employee, colleagues or customers from exposure to health and safety risks.

7.2. Types of adjustment.

Adjustments can take three forms.

1. Providing personal support:

  • Providing adapted equipment, such as orthopaedic chairs, height adjustable desks or voice recognition software.
  • Temporarily or permanently adjusting working hours (compressed hours, flexible hours, part-time working).
  • Allowing absences during working hours for medical treatment.
  • Directly funding private medical treatment to restore performance13.
  • Providing additional training, supervision or mentoring.
  • Moving the place of work to another site, floor or desk location relative to amenities such as toilets, peace or privacy.
  • Working from home.
  • Re-allocating certain tasks to other employees.
  • Employing someone else to provide assistance such as a; reader, a sign language interpreter or a support worker.
  • Transferring to a more suitable vacant position (where they have the skills or can be trained).

2. Changing the wider workplace:

  • Making physical changes to the building such as installing natural daylight bulbs, adjusting doorways or providing ramps.
  • Providing information, signage and company intranet content in an accessible format.
  • Providing training and support for colleagues, such as neurodiversity awareness training.

3. Changing organisational policies and procedures and how they are implemented (legally referred to as “provisions, criteria or practice”):

  • Allowing a carer or friend to accompany the employee at disciplinary meetings.
  • Adjusting absence criteria when selecting employees for redundancy.

7.3 Assessing what adjustments are reasonable.

You are not required or expected to make adjustments that are unreasonable but unfortunately, there is little information available (e.g., case law) to help you decide what is reasonable or unreasonable14.  So, here’s a 5 step process that you might follow to ensure that:

  • You have gone far enough in making reasonable adjustments.
  • You can prove that your decisions and actions are justified.

Step 1: Take sufficient steps to identify adjustments which might be effective, including:

  • Consulting with your employee.
  • Referring your employee for an OH assessment.
  • Working through the suggested adjustments listed earlier on this page.

Step 2: Assess each possible adjustment identified against the following criteria:

  • How effective is it likely to be; considering the opinions of your employee and OH.
  • Is it practicable or feasible to implement in your organisation?
  • What are its direct costs, relative to its likely effectiveness and affordability for your business.  The Disability Rights Commission claim that the average cost of reasonable adjustments is £7515 whilst according to ACAS the average cost is £18416. It might be possible to access external financial support or help (e.g., Access to Work grants).
  • Is there a precedent? Has the adjustment been made elsewhere, to a similar job, for a similar health condition in a similar sized company?

Step 3: Decide whether each possible adjustment is reasonable:

  • Consult with your employee when working through the assessment criteria.
  • Document your assessment and particularly your reasoning for why a possible adjustment is unreasonable.
Step 4: Ensure a right of appeal:
  • Your policies and procedures should enable your employee the right to appeal against any decision on what adjustments are deemed reasonable.
  • Normal policy design criteria apply, including the involvement of an independent authority to hear and review the appeal (e.g., another manager or equal or high seniority).

Step 5: Monitor the implementation, effectiveness and reasonableness of each adjustment, making changes when it becomes apparent that change is required.

8. What to do if OH and GPs disagree?

It is inevitable that the opinion of OH and GPs can disagree given their different roles.

8.1 The role of GPs.

Over three quarters of the 1,665 GPs responding to a Department of Work and Pensions survey agreed to feeling obliged to issue fit notes for reasons that were not strictly medical17.

When OH requests further detail from a GP the response can often be a verbatim report of what the employee has told the GP and can lack detail and a true opinion.

8.2 The role of OH.

OH share the same hippocratic oath as your employee’s GP.  They have a duty of care and a professional code to remain impartial and independent at all times.

However, OH usually understands the requirements of the employee’s job better than the GP and they will use this understanding, available medical information and the opinions of the employer and employee to produce an independent assessment and recommendations.

8.3 Government guidance.

Considering these roles, Government guidance allows you to make decisions on the basis of OH advice rather than the GP fit note18.

“A GP assessment about whether your employee is not fit for work or may be fit for work (and any other advice in the fit note) is classed as advice, and it is for employers to decide whether to accept it. Occasionally, you may believe that your employee is not fit for work when they have been assessed as fit for work by their doctor, or you may think that your employee could do some work when they have been assessed as ‘not fit for work’ by their doctor….. In situations like this, you as the employer are within your rights to gather other evidence about your employee’s fitness for work from other doctors or healthcare professionals. You can choose to give this other evidence precedence over the advice in the fit note.

8.4 Your role as the employer.

Ultimately, you have to decide who’s advice to follow.  A number of employment tribunals have upheld an employer’s decision to act according to OH advice rather than the GP fit note.  The lessons learned from these tribunals are that:

  • If your employee has been treated or is being treated by a specialist, your OH provider should have requested a report from them.
  • OH advice should not rely solely upon this report.  It should also be based upon an assessment by an OH Specialist Practitioner or by a suitably qualified specialist at the request of the OH Practitioner.
  • The OH report should be carefully written, unambiguous, specific and clear.
  • The reason(s) for your decision need to be sensible, reasonable and documented at the time of the decision. 
Sources:
  1. Minimum Requirements for Workstations.  legislation.gov.uk.  Web site.  Last checked 28/06/2021.[]
  2. Physical and shift work in pregnancy.  Occupational aspects of management. Evidence-based guidance for employers.  NHS Plus, Royal College of Physicians.  2009[]
  3. Department of Work and Pensions v Hall.  UKEAT/0012/05.  2005.[]
  4. Taylor v Ladbrokes Gaming & Betting Ltd UKEAT/0353/15/DA. Employment Cases Update. 16th December 2016[]
  5. Data Protection. The Employment Practices Code.  Information Commissioner’s Office.  November. 2011[]
  6. Data Protection. The Employment Practices Code.  Information Commissioner’s Office.  November. 2011[]
  7. When is consent appropriate?  Information Commissioner’s Office.  Web site. Last checked on 29th September 2021[]
  8. When is it legal to access employees’ medical records? People Management. 2018.[]
  9. Protect home workers.  HSE.  Web site.  Last checked 28/06.2021[]
  10. Homeworking Guide.  Unison. June 2017.[]
  11. Display screen equipment (DSE) workstation checklist. HSE.  Web site.  Last checked 28/06/2021[]
  12. Working safely with display screen equipment.  6. Homeworking” HSE.  Web site.  Last checked 05/07/2021.[]
  13. Croft Vets Ltd & Ors v Butcher.  UKEAT/0430/12/LA UKEAT/0562/12. 2013.[]
  14. Reasonable adjustment: when is it too expensive?  Thompson Reuters PRACTICAL LAW.  27/10/2011[]
  15. Top Tips for small employers. A guide to employing disabled people.  Disability Rights Commission.  2015.[]
  16. Disability and employment: heart v head?  ACAS.  9th June 2016.[]
  17. General Practitioners’ attitudes towards patients’ health and work, 2010-2012.  Department of Work and Pensions.  Research Report No. 835[]
  18. Getting the most out of the fit note: guidance for employers and line managers.  Gov.uk.  Updated 14 December 2016[]