When an employee is off sick or is still at work but has confirmed they have a medical condition which impacts on their ability to work in some way, it is possible for HR, the line manager or the business owner to request medical information.
In an ideal world, your contract of employment will make reference to access to medical records. There is legislation in this area and employees have to give consent, but there are three ways in which the business can ask for medical information.
The first is in a meeting with the employee. This might take place in a number of different circumstances:
- a formal return to work meeting on the employee’s return from a sickness absence,
- a formal or informal welfare meeting while an employee is off sick
- an informal chat between the employee and the manager who is concerned about the employee
- a formal investigation meeting following an incident and ahead of a potential disciplinary procedure
- a formal capability management meeting as a result of under performance
The second way in which the business can ask for medical information is by writing to the employee’s doctor. In this instance, the employee will be given a letter explaining what the company wants to do and why, and the employee will be asked to authorise contact with the doctor and to provide the appropriate contact details. The employee will also have the opportunity to state whether they wish to see the medical report before it is released to the employer.
The final way in which the business can obtain medical information is by sending the employee to an occupational health (OH) doctor. In some large organisations OH is internal, but for most, the services of an OH doctor will need to be retained on a case by case basis. The employee needs to agree to be seen and the business will pay for the consultation and subsequent report. Even when the business has paid for the medical consultation and report, there is no obligation on the employee to release the report to their employer.
In answer to the question, can Human Resources (HR) ask for medical information, the short answer is “yes”, but the long answer is that they may not get the information they have asked for.
Why would HR want access to medical information?
All employers have a duty of care towards their employees and it is important that they understand the needs of each employee, especially if the employee has a medical condition which affects them either on an ongoing basis or on an ad hoc basis. The employer must take all reasonable steps to keep their employees safe, so knowing that someone has a medical condition may be essential. If someone is on medication and becomes ill at work, the employer may need to pass on essential information to first responders. If someone were to collapse at work, knowing they have diabetes, a heart condition, epilepsy, or high blood pressure, may be essential and potentially lifesaving. If someone has a mobility issue, would they need assistance if the lift fails or there is a fire in the building? There are lots of reasons an employer might need to fully understand an employees medical background.
The Dos and Don’ts of Medical Information
Once you have the medical information, how you handle it, act on it and store it is subject to data protection and equality legislation.
From a data protection perspective, who is going to have access to the information? Where is it going to be stored? How long will the information be held? How often will it be updated to ensure that only current, relevant information is held? Make sure your data protection policies are clear and include access to medical information.
From an equality perspective, again who is going to have access to the information, but also, how will it be used? Employers should not be making decisions about hiring, promotion, opportunities or terminations based on medical information. This could lead to a claim for disability discrimination.
However, employers should be making reasonable adjustments were appropriate to do so. Allowing people to make use of special equipment and facilities, enabling people to travel out of the rush hour, giving longer breaks and extending the day to make up the hours, enabling people to work at home some or all of their time would all be seen as reasonable adjustments which may be applied on an ad hoc or permanent basis in line with the individual needs of the employee.
Some employers take the view that if they don’t ask about an employee’s medical condition, then they can’t be expected to make reasonable adjustments and can just pretend that there is no medical condition to be aware off. The challenge comes when work suffers and the employer then wants to take disciplinary or capability action. If they have been ‘sort of aware’ of a condition, or been told but not asked the right questions, taking disciplinary or capability action could result in a grievance or an employment tribunal claim. Ignorance is no defence unless the employee has genuinely kept their condition from you and their colleagues.