Employee medical records: access for employer

This article discusses the practical steps an employer must take to obtain a medical report on an employee, whether from the employee's general practitioner, a specialist consultant, a company doctor or an occupational health specialist.

 

Related agreements:

 
 

Contents

Introduction

What the law states

An employee's rights

 

 

Introduction

This article is based on the Access to Medical Reports Act 1988. It also states the practical steps an employer must take to obtain a medical report on an employee, whether from the employee's general practitioner, a specialist consultant, a company doctor or an occupational health specialist.

Why would I want to obtain medical information or a report on an employee?

  • As a pre-employment check where health or physical ability is a relevant factor for the job;
  • as a prerequisite for membership of an employer's health insurance scheme;
  • to assess whether an employee is suffering from a physical or mental impairment which might constitute a disability for the purposes of the Disability Discrimination Act 1995 (DDA) and/or to determine whether any reasonable adjustments, which might assist them to carry out their job, are required under the DDA;
  • To ascertain a likely timescale within which an employee will return to work following a period of long-term absence;
  • To consider whether an employee who has taken a substantial amount of short-term intermittent absences is suffering from any underlying medical condition;
  • To consider whether an employee might qualify to receive benefits under a permanent health insurance (PHI) policy.

What the law states:

The Access to Medical Reports Act 1988 (AMRA) provides employers with a right of access to reports provided by medical practitioners in connection with employment. The act also gives employees the right to withhold their consent from certain information being provided about them by their doctors.

Whose information can be accessed?

Those who have been are or are seeking to be employed. This is therefore, most people.

Which reports may I access?

Any report supplied by a medical practitioner as long as it is for employment or insurance purposes.

Procedure for accessing medical information

You may apply to see a report only if you have notified the employee concerned in writing that you intend to make the application. The employee must provide their explicit consent to the application being made.

Employers must advise employees of their rights under AMRA at the time that consent is sought. This is most easily done by supplying employees with "statement of rights" summary. Employers should obtain an employee's written and supply a copy of the consent to the doctor.

An employee's rights

An employee who has been asked to provide their consent for a medical report from their doctor has three options:

  • To withhold their consent;
  • To consent to the application for the report and agree that it can be sent directly to their employer;
  • To consent to the application, but indicate that they wish to see the report before it is supplied to their employer (section 4(1), AMRA).

If an employee has agreed that the report can be sent directly to their employer, there is then little opportunity to change their mind and request access to the report.

For you to see the report, the doctor must either send you a copy of it, or send it to the employee first. The doctor is entitled to make a reasonable charge for this.

Information exempted from access

The doctor is not obliged to show the employee any parts of the report that they believe might cause serious harm to the employee's physical or mental health or that of third parties, or to show the employee information concerning third parties without their permission.

Enforcement

An employee may apply to the county court for an order compelling their employer to comply with any of the provisions of AMRA.

Employees are not able to seek damages for their employer's failure to comply with AMRA and neither will employers be liable to any fines for a failure to comply.

An employer's failure to follow the statutory procedure contained in AMRA could be cited by an employee in, for example, tribunal proceedings for unfair dismissal or disability discrimination.

Data Protection

The DPA applies to all personal data held about employees in an organised filing system. Information about employee's health will amount to sensitive personal data under the DPA and the employer will therefore need to either have an employee's specific written consent or comply with one of the conditions in Schedule 3 of the DPA in order to lawfully process it.

Documents you might need

Net Lawman sells draft letters which will assist you in the procedures described in this article at Consent to Release Medical Records.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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