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Occupational Health Standards.
Employer Guide to Regulation, Medical Ethics and Best Practice
1. Occupational Health Standards. Know, Assess, Adjust/Control and Monitor
Occupational health standards are determined by; regulation, your common law duty of care to your employees and implied terms in employment contracts. These standards require you to:
ASSESS
The degree of effect or risk using an adequately trained person.
ADJUST/CONTROL
For the effect or risk taking all reasonably practical steps.
MONITOR
The continued adequacy of adjustments / controls and change them if necessary.
The following sections provide the essential details you need to achieve these fundamental standards.
2. Occupational Health Standards. Work Related Health Risks
The Health and Safety at Work etc Act 1974 is the principal piece of legislation for occupational health and safety in Great Britain. It places a duty on you to ensure, as far as is reasonably practicable, the physical and mental health, safety and welfare of anyone likely to be affected by your organisation’s activities, including employees, contractors, customers and the general public by:
- Conducting health risk assessments and as far as is reasonably practical, implementing controls for identified risks.
- Providing a safe working environment which is properly maintained and where operations within it are conducted safely.
- Providing adequate training of staff to ensure health and safety procedures are understood and adhered to.
- Providing adequate welfare provisions for staff at work.
- Providing relevant information, instruction and supervision.
It gives the Health and Safety Executive (HSE) and local authority inspectors extensive investigative powers and the authority to:
- Serve improvement and even prohibition notices; and
- Bring prosecutions for health and safety offences.
The Management of Health and Safety at Work Regulations 1999 provides more definition around the duty to carry out health risk assessments originally introduced in the Health and Safety at Work etc Act 1974.
- You must appoint a suitably competent person to identify physical and stress related safety risks, assess the significance of the risks (likelihood of occurrence x impact should they occur) and implement risk controls proportionate to their significance.
- You must complete a general risk assessment at an aggregate; company, site, team or job description level.
- Where the general risk assessment fails to adequately control risks for a particular employee, you will be expected to conduct an individual health risk assessment for that employee. Typical scenarios would require a:
- New & Expectant Mother Risk Assessment when your employee informs you of their pregnancy with complications or other health conditions4. Consequent to a 2017 judgement by the Court of Justice of the European Union, UK legal advice is that individual risk assessments are completed for all new and expectant mothers and furthermore, because pregnancies are not static conditions, the risk assessment should be reviewed if risks change5.
- DSE-Workstation Assessment, e.g., when your employee complains of discomfort or pain.
- Stress Risk Assessment when you have reason to believe that your employee is struggling with work related stress.
3. Occupational Health Standards. DSE-Workstation Related Health Risks
The Health and Safety (Display Screen Equipment) Regulations 1992 requires that for employees working on your premises or at home, 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 standards. These standards are defined on the government’s Minimum Requirements for Workstations web page6.
- 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.
3.1. When to conduct assessments:
- You must conduct an assessment for all employees defined by the Act when introduced to a new DSE-Workstation set up.
- The assessment needs to be reviewed when:
- Major changes are made to the equipment, furniture, work environment or software.
- Your employee changes workstation (Work Wellness are currently seeking clarification from the HSE on the application of this requirement to hot desk employees who may be faced with a change to their workstation as often as every day).
- The nature of work tasks change considerably.
- It is thought that the controls in place may be causing other problems.
- Your employee complaints of discomfort or pain.
3.2. How to conduct assessments:
- Adequately trained employees can fill in the HSE’s DSE-Workstation Checklist themselves. The HSE define adequate training to include:
- the risks from DSE work and the controls you have put in place;
- how to adjust furniture;
- how to organise the workplace to avoid awkward or frequently repeated stretching movements;
- how to clean the screen and mouse;
- who to contact for help and to report problems or symptoms;
- how to use the HSE’s DSE-Workstation Checklist if the employee is going to conduct their own assessment.
- Otherwise the assessment must be conducted by a trained assessor. The HSE define a trained assessor as someone who can:
- identify which employees are covered by the Act;
- assess workstation risks and put control measures in place;
- provide employee training;
- review employee self-assessments or checklists to identify any additional controls;
- tackle problems the employee is unable to solve for themselves;
- decide when additional information and help is needed, and where to go for it;
- record significant findings according to the organisation’s applicable policies.
- You should ensure that a trained assessor looks at employee self-assessment results. The trained assessor should clear up any doubtful points, provide feedback to employees and make sure problems are put right.
- If you have 5 or more employees the trained assessor must maintain a record of significant findings. The record should be simple and focused on controls.
3.3. The need for supervision:
Guidance from one employment lawyer is that relying on employee self-assessment without adequate 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 instances where employees:
- Do not conduct the self-assessment. To control for this risk you can implement procedures to: document evidence of follow-up reminders and after two reminders without a response; arrange for a trained assessor to conduct the assessment.
- Fail to identify a risk or fail to document and report it. In Work Wellness’ experience this is the rule rather than the exception. An extreme example was a homeworker assessment where each box on the HSE Checklist had been ticked, they were shortly afterwards referred to us with a chronic musculoskeletal condition and we found that their living room / laptop configuration failed almost every standard defined by the Act. To control for this risk you could implement procedures requiring employee self-assessments, particularly of homeworking arrangements, to be accompanied by photographic evidence prior to review by the trained assessor.
3.4 Homeworker DSE-Workstation Assessments
The HSE are clear that your legal obligations continue to apply when your employee is working from home7. This prompts the following questions from employers:
Answer 1:
The HSE state that homeworker DSE workstation assessments are required for employees who:
- work at home on a permanent or long-term basis;
- routinely split their time between their workplace and home (sometimes called hybrid working).
We are unable to find any regulation or legal precedent which defines “permanent or long-term” or “routine” homeworking. The closest approximation we’ve found is a Unison distinction between “ad hoc” and “regular” homeworking where regular homeworkers spend 50% or more of their contracted hours working from home8.
Work Wellness recommend that you apply the definition of a DSE user provided by the Health and Safety (DSE) Regulations 1992, as someone using DSE daily and / or continuously for an hour of more. So under this definition a homeworker DSE workstation assessment would be required for an employee operating DSE workstation equipment at home for at least 1 hour per day.
Answer 2:
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).9
- “… 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.
4. Occupational Health Standards. New & Expectant Mother Health Risks
Section 16(3) of the Management of Health and Safety at Work Regulations 1999 requires employers to protect the health and safety of new or expectant mothers who are working by:
- Performing a new and expectant mother risk assessment and to remove risks identified by:
- Altering working conditions, place of work or hours of work, or, if such alterations are unreasonable or do not remove the risks:
- Providing suitable alternative work on the same terms and conditions or, if suitable alternative work is unavailable or does not remove the risks:
- Suspension on full pay.
- Regularly monitoring and reviewing this risk assessment as circumstances may change at different stages of pregnancy.
New or expectant mothers are defined by the Regulation as:
- Pregnant or
- Given birth within the previous six months (Given birth is further defined as ‘delivered a living child or, after 24 weeks of pregnancy, a stillborn child’) or
- Is breastfeeding.
5. Occupational Health Standards. Obligation to Make Reasonable Adjustments
The Equality Act 2010 requires you to make reasonable adjustments where you know, or ought reasonably to know, that an employee has a disability.
The underlined terms are crucially important but they are also subjective and open to interpretation. Employment tribunal judges are the final arbiters and they continuously shape and refine the definition of these terms. So ultimately, the ‘correct’ definition requires a legally qualified interpretation of current and up to date case law. However, here is a legally unqualified attempt to remove subjectivity and provide a sharper definition of these terms.
The Equality Act does not require or expect you to make adjustments where you can show that they are unlikely to be effective and / or are unreasonable for your organisation to implement. Using Equality Act terminology; discrimination … is allowed (i.e., deciding not to implement an adjustment) where you can show that it is a proportionate means of achieving a legitimate aim.
Legitimate aim is rarely in dispute at tribunals and includes:
- Protecting the health, safety and welfare of your employee, other employees, customers and the general public.
- Ensuring that your organisation delivers an adequate quality of service.
- Ensuring that your business earns an adequate profit.
Proportionate means is usually the issue at tribunals. The issue being that your decision not to implement an adjustment disadvantaged your employee disproportionately compared to the damage you would have done to your organisation’s legitimate aims had you implemented it. Several sources suggest that as your organisation increases in size then so should the range of adjustments which you decide are reasonable10. This is likely to be true but neither the Equality Act nor employment tribunal judgements provide you with information to calibrate your organisation’s size against the test of “what is reasonable”11. So, scroll down to the section entitled ‘How to Use Your Occupational Health Report’ to see a 5 step process you might follow to ensure that you have gone far enough in making reasonable adjustments and you can prove that your decisions were legitimate and proportionate.
The 5 step process suggests that an adjustment is likely to be deemed reasonable if there is a precedent for its implementation elsewhere, to a similar job, for a similar health condition in a similar sized company. Here are some precedents, which broadly take 3 forms:
1. Providing personal support (termed ‘auxiliary aids’ by the Equality Act):
- 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 performance12.
- Providing additional training, supervision or mentoring.
- Moving the place of work to another site or floor or working from home.
- Assigning a fixed work location in an otherwise agile working environment for employees with conditions requiring peace and privacy, urgent access to toilets or specialist equipment.
- 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).
A recent tribunal judgement found against the employer for requiring their employee to contribute towards the cost of adjustments.
2. Changing the physical features of premises occupied by an employer:
- 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 (termed ‘provisions, criteria or practice’ by the Equality Act):
- Sickness absence management triggers13.
- Adjusting absence criteria when selecting employees for redundancy.
- Allowing a carer or friend to accompany the employee at disciplinary meetings as either a companion or representative.
- Adjusting a job application process to allow applicants with relevant disabilities (e.g., dyspraxia) to apply orally rather than on-line14.
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 work from causing or aggravating your employee’s health condition.
- Protect your employee, colleagues or customers from exposure to health and safety risks whilst working.
It is not enough to rely on a GP fit note or your employee telling you about a health condition. The Act requires that you ‘ought reasonably to know’ that your employee has a disability. In practice, this also means that:
- You must explore with your employee whether deteriorating performance is likely to be something arising in consequence of a disability15.
- Your organisation must have processes, suitably confidential and subject to your employee’s consent, for bringing together information about their health condition from different sources across your organisation (such as health declaration forms, performance reviews, voluntary disclosures to managers or HR and even applications for Disabled Person’s Tax Credit16) to enable you to fulfil your duties under the Act. If such information exists then your organisation is deemed to have constructive knowledge of your employee’s condition and will be in breach of the Act if it fails to ensure that you have the information so that you can act upon it.
The Equality Act defines an employee as disabled if they have:
- A long-term health condition which has a substantial effect upon their ability to perform in their role.
- A progressive condition.
- A condition which is automatically defined as a disability by the Act regardless of whether it meets the definition of ‘long-term’ and ‘substantial effect’.
Long-term. The duration of the effect has already or is likely to last longer than 12 months. The duration can include periods of recurring or fluctuating effects.
- Recurring is where the symptoms / effects of a health condition are absent for long periods of time, possibly even years, but return periodically due to an underlying sensitivity to specific triggers. Examples include; anxiety and / or depression, where years can pass between episodes. During these intervening periods it may not even be necessary to have an effective treatment strategy in place. The condition would usually need to be medically diagnosed and therefore well understood, and for a second recurring event to have taken place for it to be defined as recurring.
- Fluctuating is where the symptoms / effects of a health condition are always present but the severity of symptoms varies over time. The condition would usually need to be medically diagnosed and therefore well understood, for it to be defined as fluctuating. Examples can include asthma and psoriasis which are medically understood to flare up occasionally, triggered by respiratory infections or allergens, even with an effective treatment strategy in place.
Substantial effect. Is defined by employment tribunals as any condition which currently affects your employee’s physical or mental capacity to do their job. As one lawyer comments: “…tribunal judges have set the bar lower than the word ‘substantial’ might imply“.
It is sufficient for your employee to prove that their capacity to do their job is affected, “It is not necessary for the cause of the disability to be established17” (i.e., for the cause to be medically diagnosed). Requiring your employee to disclose a medical diagnosis before considering adjustments, as a matter of policy, is not compliant with the Act.
However, if you are confident that your employee has failed to prove that their capacity is affected then you could, and probably should, request evidence of a medical diagnosis before finally deciding whether to consider adjustments18.
Progressive condition. Is any diagnosed condition which currently has an effect but which does not yet meet the definitions of ‘long-term’ and / or ‘substantial’ but is likely to in the future. Alzheimer’s disease, motor neurone disease, muscular dystrophy and dementia are often quoted examples but there is no defined list, the definition should be based upon the prognosis of an appropriately qualified medical professional.
- Likely is interpreted by employment tribunals to mean ‘small possibility’. For example; an employee with mild Type 2 diabetes, leading a healthy lifestyle, stable, and feeling no ill-effects was defined by a tribunal judge as disabled because they were presented with medical evidence suggesting a ‘small possibility’ that Type 2 diabetes might progress to Type 1 diabetes at some point in the future19.
Automatically defined health conditions are:
- Deemed disability (i.e., blind, severely sight impaired, sight impaired or partially sighted). Defined as disabled from the point of certification by a consultant ophthalmologist.
- Certain medical conditions (i.e., HIV infection, cancer or multiple sclerosis). Defined as disabled from the point of diagnosis by a suitably qualified medical professional.
- Severe disfigurement (e.g., severe facial scarring or a skin disease) not deliberately acquired (e.g., unremoved tattoos and piercings).
The Act also specifically excludes the following conditions from the definition of disability:
- Seasonal allergic rhinitis (hay fever) is the sole direct cause of the effect.
- Substance addiction is the sole direct cause of the effect. For example, an employee’s performance is unsatisfactory due to alcohol dependency.
- Anti-social behaviour. ‘A tendency to; set fires; steal; physically or sexually abuse others; exhibitionism; voyeurism’. You must be very careful when managing an employee exhibiting anti-social behaviour caused by an underlying health condition which meets the definition of a disability. For example; consider an employee with ADHD who struggles to concentrate and has a tendency towards verbal abuse of others. You can manage the verbal abuse through your normal disciplinary policy without an obligation to consider adjustments for it, but you must consider adjustments to address poor concentration whilst they remain in employment with you.
A condition can be defined as a disability even if the cause is a consequence of a specifically excluded condition. For example, if the alcohol addiction led to liver disease which met the definitions of ‘long-term’ and ‘substantial effect’, then the liver disease can be defined as a disability.
The application of the Equality Act by employment tribunals has prompted legal advisers to recommend that you:
- Are diligent in assessing adjustments for any employee health condition, whether or not you believe the condition is defined as a disability under the Equality Act.
- Only withdraw conditional employment offers or dismiss on grounds of health as a very last resort.
6. Occupational Health Standards. Data Protection, Confidentiality and Consent
Information about your employee’s health can include:
- The name of their health condition.
- A description of their symptoms.
- A description of their medical treatment and its effectiveness.
- A prognosis for their recovery.
The Data Protection Act 2018 places a duty on you and your occupational health provider to:
- Obtain explicit consent from your employee to process information about their health.
- Protect the confidentiality of this information.
This duty is further defined by the:
- 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.
- Data Protection. The Employment Practices Code 201120. This code can be summarised into 5 key points as follows (italicised text are verbatims copied over from the Code document):
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.
In practice, before processing employee health information, you should have:
- Evidence that the information has been manifestly made public by your employee or;
- A court order to process the information for the establishment, exercise or defence of legal claims or;
- Employee consent and at least one other lawful basis for processing.
Employee Consent. To be valid:
- Consent must be Explicit. meaning 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. Explicit consent must be affirmed in a clear statement (whether oral or written)21.
- The worker must have given a positive indication of agreement, e.g. a signature or tick box opt in.
- Consent must be Freely given meaning the worker must have a real choice whether or not to consent and there must be no penalty imposed for refusing to give consent.
The Royal College of Physicians Ethics Guidance for Occupational Health Practice22 includes the overriding principle of ‘no surprises’, where your employee is “absolutely clear about the process and what will be reported about them”. The Work Wellness process ensures ‘no surprises’ by obtaining your employee’s explicit consent, at the start of the referral process, to;
- The management referral form, because it contains confidential information about your employee and the purpose for which this information will be processed (i.e., the questions you are asking Work Wellness to answer).
- The possibility that later in the process:
- Work Wellness may request copies of GP / treating specialist letters and reports from your employee.
- Work Wellness may request a medical report from your employee’s GP or treating specialist.
- Work Wellness may commission a specialist examination / assessment.
- You may share the assessment report, on a need to know basis, with other managers who need to act upon its contents.
…and once the process is underway
- Obtaining more explicit consent, in compliance with the Access to Medical Records Act 1988, should we decide to request a medical report.
- Offering your employee the opportunity to request the correction or deletion of confidential information contained in the assessment report prior to its release to you.
- Reminding your employee that they can withdraw their consent for the assessment report to be released you.
Lawful Basis. 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 basis for processing employee health information which are23:
- 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.
- 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.
- Can access to health information be limited so that it will only be seen by medically qualified staff?
- 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.
An occupational health 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 employee’s ability to perform a defined role.
- If reasonable adjustments at work need to be made24.
In our experience, your employee is usually happy to consent to the disclosure of health information. They will have already disclosed some information to you before you refer them for an occupational health assessment and in those instances when they have not, they rarely withhold their consent for Work Wellness to disclose relevant information in our assessment report.
We generally find that disclosing health information is helpful and productive for both you and your employee. For example, just being able to put a name to a health condition:
- Helps in locating:
- Further information about the condition (such as how it can be treated and managed).
- Support from others experiencing the same condition.
- Suggests that the condition is medically understood, treatable and manageable which, in turn, can reduce feelings of helplessness and hopelessness in the face of disabling symptoms and their effects upon capacity to perform in a job25.
- Improves your’s and other colleague’s understanding of the condition and acceptance of its symptoms as; real, palpable and worthy of adjustments and support.
Having said this, we also recognise instances where disclosure of health information will not be helpful or productive and may even damage the interests of your employee.
If your employee does not consent to the occupational health practitioner disclosing health information to you, the practitioner will instead, describe the information in terms of its 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”.
Occupational health practitioners should follow General Medical Council best practice 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 General Medical Council, Royal College of Nursing and Nursing and Midwifery Council agree on exceptional situations where occupational health practitioners should not maintain confidentiality, including:
- Where the occupational health 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 occupational health 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. Occupational health practitioners should be masters of this complexity and operate processes which are compliant without being overly restrictive and cumbersome. In this way, an occupational health practitioner can help you minimise the cost of compliance.
For further information about maintaining confidentiality and other aspects of data privacy see our Privacy Statement (it can be accessed via a link in the footer of this page).
The ICO expect you to respect the confidentiality of information processed by occupational health:
- 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.
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. Specific legal advice we have seen states that:
- Requiring your employee to provide consent to their GP to release their medical records to you or to make a Subject Access Request to their GP in order to obtain their medical records and hand them over to you, is illegal under section 184 of the Data Protection Act.
- GPs have been known to print out your employee’s entire medical record in response to a request for a GP report, such information is excessive and must be deleted immediately.
- 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.
Despite the ICO conceding that you may request health information about your employee directly from their GP, the Royal College of Physicians Ethics Guidance advises medical professionals to discourage you from doing so because of the risks, explained in 6.3 above, that you may not be qualified to reliably interpret the information.
7. Occupational Health Standards. Prohibition on Requesting Health Information.
In order to minimise any opportunity to discriminate against disabled job applicants, 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 (e.g., who know where to find and administer your employee’s EpiPen).
- Breaches your legal obligation to make reasonable adjustments for a disability under the Equality Act.
Exceptions to the general prohibition:
The Equality Act allows a specific 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. This specific exception helps you to avoid employing the scaffolder who is unable to climb a ladder or the visually impaired HGV driver.
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 the remainder of the interview process (e.g., tests and 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.
7.1. Approaches to requesting health information.
You might screen out candidates / job applicants who fail to meet the intrinsic requirements of the job by:
- Specifying the intrinsic requirements as screening questions on the job application form.
- Ask for the relevant health information at interview.
However, these two approaches are prior to the job offer which means you are prohibited from requesting sufficient additional 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. This “baseline health information” might prove to be a valuable insurance in the event of any future claims for occupational injury.
- 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.
7.2. Approaches to pre-placement health screening.
7.2.1. 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 occupational health needs and organisations with a widely distributed or remote workforce.
- Recommended by the ICO in preference to a medical examination, or as a means of selecting individuals required to undergo a medical examination.
7.2.2. 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.
- Testing for isocyanate exposure.
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 risk 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.
8. Occupational Health Standards. How to Use Your Occupational Health Assessment Report.
At a high level, you are likely to be in one of two situations when you receive the occupational health assessment report:
- Your employee is sickness absent, the occupational health assessment report deems them currently unfit for work and is unable to offer a prognosis for a return to work within the next month or so. In this situation you would continue to manage the absence according to your sickness absence policy.
- Your employee is working or they are sickness absent and the occupational health assessment report deems them likely to return to work within the next month or so. In this situation you might follow this 5 step approach to using your occupational health assessment report. The effort you invest in each step of the process will be proportional to the complexity of the case; much less if the only need is to replace an office chair, much more if the need is for multiple adjustments and support for an employee whose performance is affected by several long term and debilitating health conditions.
8.1. Five step approach to using your Occupational Health Assessment Report
Possible adjustments can be identified from:
- The occupational health assessment report.
- The adjustments listed in the section elsewhere on this page entitled: ‘Obligation to Make Reasonable Adjustments’.
- A conversation with your employee which might generate other ideas for adjustments and support.
Assess each adjustment against the following criteria:
- Is it likely to be effective; considering the opinions of your employee and occupational health?
- Is it practicable or feasible to implement in your organisation?
- Can you afford it? The Disability Rights Commission claim that the average cost of reasonable adjustments is £7526 whilst according to ACAS the average cost is £18427. It might be possible to access external financial support or help (e.g., Access to Work grants).
- Are you aware of any precedent where the adjustment has been implemented elsewhere, to a similar job, for a similar health condition in a similar sized company?
If the answer to these questions is “yes” (or not a definite “no”) then the adjustment is likely to be regarded as 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.
- 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 of equal or higher seniority).
For agreed, reasonable adjustments, document the required actions, 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 your 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 significant ownership on behalf of your employee in order to avoid aggravating their health condition (e.g., in instances of stress, autism, etc).
The process of documenting is a powerful vehicle for flushing out any misunderstandings and ambiguities and because things are written down, they are more likely to be actioned. 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.
- Keep to an agreed schedule for the review meetings. They could become an additional agenda item at regular 121s.
- Hold both yourself and your employee accountable for progressing your respective actions.
- Review the implementation, effectiveness and reasonableness of each agreed adjustment.
- Make changes the Action Plan with agreed actions and implementation dates when it becomes apparent that change is required.
Use the Action Plan as a living document where you record your review meeting conclusions and decisions.
Having followed this 5 step process you might need to decide:
- Is performance now at an acceptable level having implemented and reviewed the effectiveness of the action plan? And if not then;
- are there further reasonable adjustments which could be made and support which could be provided?
- should you dismiss your employee because they are unfit for work?
- is ill-health retirement an option (dependent upon the rules of your employee’s occupational pension scheme)?
- To what extent is performance being affected by conduct issues which are outside of the scope of the occupational health assessment but probably within the scope of a disciplinary policy?
If you are considering any form of disciplinary process, dismissal or ill-health retirement then you will need to call upon expert advice from human resources and / or your legal counsel.
8.2. When your occupational health report disagrees with your employee’s NHS fit note.
It is inevitable that the opinion of occupational health and the NHS can disagree given their different roles.
8.2.1. The role of the NHS.
The role of the NHS includes protecting and caring for your employee’s health, it does not include supporting and protecting the interests of your organisation.
A Department of Work and Pensions survey of 1,665 NHS GPs found that over three quarters felt obliged to issue patients with fit notes for reasons that were not strictly medical, e.g., to avoid discussion and the risk of extending appointment times, regardless of the consequences for the patient’s employer28.
8.2.2. The role of occupational health.
Occupational health and NHS practitioners share the same ‘hippocratic oath’ towards your employee. Occupational Health Practitioners are required by the Royal College of Physicians’ Occupational Health Standards and the Nursing and Midwifery Council’s Code of Professional Conduct to remain impartial and independent at all times.
However, occupational health usually understands the requirements of the employee’s job better than the NHS and they will use this understanding, available medical information and the opinions of the employer and employee to produce an independent assessment and recommendations.
8.2.3. Government guidance.
Considering these roles, Government guidance allows you to make decisions on the basis of occupational health advice rather than the NHS fit note29.
“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”
8.2.4. 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 occupational health advice rather than the NHS fit note. The lessons learned from these tribunals are that:
- If your employee has been treated or is being treated by a specialist, the occupational health assessment report should evidence that the occupational health practitioner has:
- Requested letters / reports issued by them.
- Conducted their own assessment and not relied solely upon specialist letters / reports.
- The occupational health assessment report should; be well structured and easy to follow and free from any internal contradictions.
- The reason(s) for your decision need to be sensible, reasonable and documented at the time of the decision.
8.3. Fitness to attend a disciplinary meeting.
A special case can arise where:
- Your employee refused to attend a disciplinary meeting and provided a fit note stating that they were unfit for work due to anxiety, depression or work related stress.
- You referred the employee for an occupational health assessment which recommended that whilst your employee was unfit for work, they were fit to attend the disciplinary meeting because:
- They were able to understand the case against them and of representing themselves (either in person or through a representative).
- Attendance would not seriously aggravate their condition (e.g., create a risk of suicide).
In making this recommendation the occupational health practitioner will have balanced the relative effects upon your employee’s health of:
- Attending the meeting. Whilst distressing, the sooner it happens the sooner the procedure can conclude, enabling your employee to mentally heal and move on.
- Putting off the meeting. Continued worries about the unresolved procedure may erode feelings of wellbeing and develop into a chronic long-term condition such as anxiety and depression.
The occupational health practitioner can recommend adjustments to reduce the distress of attending, such as:
- Providing a written explanation of the case against the employee in advance.
- Being accompanied by a particular companion or representative.
- Omitting the presence of the line manager or other ‘antagonists’.
- Holding the meeting in a ‘neutral’ meeting location minimising the risk of coming into contact with other employees.
- Allowing extra time to consider the charges and to reply.
If:
- The occupational health practitioner assesses that your employee is fit to attend and the health risks associated with attendance are minimal.
- You have made reasonable adjustments to enable your employee to attend.
- Your employee continues to refuse attendance on health grounds.
Then ACAS guidance allows you the option of holding the meeting in your employee’s absence, taking into account any written representations from your employee, and any other available evidence, before making a decision (subject to your organisation’s policies including rights of appeal, etc).
9. Occupational Health Standards. Frequently Asked Questions
The Royal College of Physicians provides detailed guidance for occupational health practitioners 30 which incorporates all applicable legal and medical practice requirements. This guidance defines mandatory minimum standards and offers best practice suggestions which make the occupational health assessment process largely standardised and repeatable from one occupational health practitioner to the next. The Management Referral and Employee Consent forms, carefully and comprehensively completed by the referring manager, are fundamental to this process.
Occupational Health Standard
Referring managers do need to invest in learning and complying with the process. For the first one or two referrals it can feel unfamiliar, even over-engineered, but it is necessary to meet minimum standards.
The amount of investment required by the referring manager to learn the process can be significantly reduced by occupational health providers who:
- Invest in familiarising themselves with the referring manager’s prior level of knowledge, learning and working styles and adapting accordingly.
- Make their practitioners available to familiarise the referring manager with their process and make time to discuss the application of the process to new and complex cases.
- Reflect on how each case progressed and use lessons learned to streamline, refine and improve their process for next time.
- Use technologies with which the referring manager is already likely to be familiar.
At best, the occupational health practitioner has an incomplete brief to satisfy. At worst, the employee provided consent without knowing the purpose for which their health information will be processed; a breach of the Data Protection Act.
Occupational health standard. The occupational health practitioner should return the referral form to the referring manager and request that they specify the questions to which they require answers. The occupational health practitioner should also offer their guidance where needed (e.g., a quick telephone call) to help the referring manager define the questions they need answering.
This is a common dilemma which features regularly in occupational health practitioner discussions. Other “off the record” disclosures include; employees coming into work hung over, posting active attendance at a social or sporting event on Facebook or having a second job whilst sickness absent, etc. It’s a dilemma because:
- The referring manager is disclosing information about the employee which is not on the referral form and that means the employee has neither consented to sharing it nor to the expansion of the scope of the assessment.
- The information can often indicate a conduct issue (i.e., a breach of the employee’s contract of employment or company policy) rather than a health condition relevant to the referral and is something which should be addressed directly by the line manager rather than indirectly by the occupational health practitioner.
Occupational health standard.
The occupational health practitioner should ask the referring manager to document the information either on the referral form or another document / email and obtain their employee’s consent to its disclosure prior to sending on to the occupational health practitioner. The occupational health practitioner should also offer their guidance where needed (e.g., a quick telephone call) to help the referring manager position or frame the information in the referral form. Otherwise they must decline to include the information in their assessment or to change the scope of the assessment.
Of course, the employee may volunteer this information during the assessment, and if it is relevant to the health conditions being assessed (e.g., it is causing or aggravating the condition) then it might usefully inform the assessment and be included in the assessment report subject to the employee’s consent.
The referring manager is forewarning / describing how the employee may behave during the assessment, e.g., the employee may become highly emotional about a certain subject or they may be defensive, etc.,
Occupational health standard.
The employer is sharing their own opinion rather than confidential information about the employee so there isn’t a breach of confidentiality. Such information can be very useful for the occupational health practitioner in preparing for a successful assessment.
Occupational Health Standard. The employee has consented to this question being asked, so the occupational health practitioner can seek and disclose this information to the extent that it is relevant to the employee’s health condition, its impact upon their performance, and any recommended adjustments.
As best practice, the occupational health practitioner should also offer the employee the option of having advance sight of the assessment report and the opportunity to request the deletion of confidential information before consenting to the release of the report to the referring manager.
The occupational health practitioner cannot assess the employee’s competencies, skills and experience, this is the responsibility of the manager.
Occupational health standard. The occupational health practitioner should assess the employee’s fitness for work and report this assessment and any recommendations for adjustments back to the manager.
The occupational health practitioner cannot recommend dismissal or re-deployment, even if this question is asked on the referral form. It is for the employer to decide whether their employee’s capability is so impaired that there is no alternative but to re-deploy or dismiss.
Occupational health standard. The occupational health practitioner should advise which job functions the employee is incapable of performing after considering all possible adjustments and may offer the opinion that the employee is unfit to do the job if no adjustments can be recommended or after there has been a reasonable attempt to make adjustments.
Occupational health standards.
The occupational health practitioner should recommend possible adjustments. It is the employer’s responsibility to decide which adjustments are reasonable based upon their detailed understanding of the job, the team and the needs of the organisation. The section elsewhere on this page entitled How to Use Your Occupational Health Assessment Report provides guidance on how to make the decision.
This is a frequently encountered dilemma which often leaves the occupational health practitioner feeling conflicted. It includes situations where the employee:
- Confides that their line manager is a cause of stress or is likely to be antagonistic towards implementing the adjustments.
- Is concerned that the adjustments will significantly reduce their contribution to the organisation and their career prospects.
- Ensure that the employee has made an informed choice by carefully explaining the risks of not recommending and implementing the adjustments.
- Record clear and specific clinical notes of such advice including the risks which have been explained.
- Satisfy themselves that they will be able to justify their decision to an employment tribunal or regulating body, should the employee regret their instructions at some stage in the future and bring a health related claim against their employer.
Occupational Health Standard
The assessment and recommendations contained in the report should balance a number of considerations including:
- Legal Compliance. An opinion or recommendation which is necessary for the referring manager to meet the standards defined by legislation such as the Health and Safety or Equality Acts or applied by enforcement agencies such as the Health and Safety Executive should be included, even if it makes for difficult reading. Providing a reference to the relevant standard or court judgement can help with understanding and acceptance.
- Compliance with medical standards, ethics and professional codes of practice. Collectively this means that the occupational health practitioner has a “hippocratic oath” to recommend sufficient adjustments to protect and care for the health and wellbeing of the employee or reduce any disadvantage caused by a health condition. At the same time, the occupational health practitioner will be careful to limit their recommendations to what might be reasonable for the referring manager to implement. The occupational health practitioner identifies these limits by keeping up to date with adjustments typically implemented by employers and / or regarded as reasonable by employment tribunals and enforcement agencies. Even so, the occupational health practitioner might still make a recommendation which exceeds an organisation’s capacity to implement. If it does, then the organisation can decide not to implement it. The section on this page entitled How to use your Occupational Health Assessment Report provides guidance on how to make that decision.
- Impartiality. The first step in ensuring impartiality is for the referring manager to carefully and comprehensively complete the referral form, this will help to counterbalance the information, emphasis and context the employee will be providing directly to the occupational health practitioner during the assessment. The second step is for the occupational health practitioner to ‘validate’ the information provided on the referral form and by the employee against their own medical understanding of the condition, any available GP or treating specialist letters and reports, and by using relevant health assessment tools. In addition, as a third step, the occupational health practitioner typically adopts a non-judgemental approach when assessing information provided by the employee, but where information sources appear inconsistent or the employee appears in any way insincere, the occupational health practitioner should probe more deeply to establish a reliable and impartial assessment. In some situations the occupational health practitioner may recommend commissioning a specialist report or examination.
- Satisfying the referring manager. Occupational health practitioners are mindful that an assessment or recommendation which makes for difficult reading risks being the last referral they ever receive from an organisation. The occupational health practitioner will only take this risk when they deem it to be absolutely essential to protect the interests of the employer and the employee and of course, to protect their own continued ‘licence to practice’.
Line managers are responsible for their employee’s health whilst at work, for deciding what adjustments and support are reasonable, for ensuring reasonable adjustments and support are implemented and for monitoring their effectiveness. To dispense this responsibility they can call upon support from functions such as; human resources (HR), health and safety, legal services and occupational health (OH). Line managers might try and shift some of their responsibility onto an OH practitioner, particularly when the OH practitioner is in-house, always visible and apparently, always available. However, whether in house or not, the role of OH does not extend to being a directly available, on demand, point of contact for employees or for working across the organisation to advocate and procure adjustments and support on behalf of the employee. Reasons cited by OH practitioners include;
- The requirement for OH to remain independent and not to support or advocate either one of the employee or employer more than the other.
- The difficulty, for the OH practitioner, of anticipating the information they are likely to disclose on behalf of the employee prior to each communication with the line manager or other colleagues across the organisation, identify which of this information requires the employee’s explicit consent to disclose and then obtain the employee’s explicit consent to disclose it.
- The dangers of the OH practitioner agreeing or being perceived to have agreed adjustments and support with the employee which are then rejected by the line manager and / or HR.
- The dangers of OH becoming the target of complaints or grievances because of accidental or willful misunderstanding arising out of:
- Separate communication threads between the line manager, the employee other colleagues across the organisation and the OH practitioner.
- Different expectations of the scope of the role of the OH practitioner across line managers and other colleagues.
OH Standard
The OH practitioner could describe the role of occupational health to the employee as a way into requesting that their line manager considers a formal referral to occupational health.
The OH practitioner could also make an offer to their main organisational contact (usually someone with HR responsibility) to provide relevant content for inclusion in; internal communications, management education and training, and organisational policies and procedures.
Features of an effective occupational health assessment include:
- Empathy; the employee feels listened to and taken seriously.
- Support; the employee feels that guidance and advice they received during the consultation and recommendations for adjustments and support included in the assessment report are helpful.
If the employee feels that their line manager and / or HR are not so empathetic and supportive then they may revert back to the OH practitioner for advice or even to request intervention on their behalf.
The OH practitioner should not offer to intervene on behalf of an employee;
- The practitioner must remain independent and not support or advocate either one of the employee or employer more than the other.
- The practitioner may not be fully aware of discussions, agreements and disagreements between the employee, line manager and HR since the previous assessment and by intervening they risk adversely affecting internal processes as well as adversely affecting their own credibility.
Occupational Health Standard
The OH practitioner could describe the role of occupational health to the extent that it supports the following advice to the employee:
- The employee should raise their concerns with their line manager / HR. They might also request another referral to occupational health where the effectiveness of adjustments and support implemented to date can be assessed and any further recommendations can be made.
- The practitioner will await receipt of a formal referral. In the meantime the practitioner they will not proactively inform the line manager / referring manager that the employee has contacted them for advice and support.
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