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 (GP), a specialist consultant, a company doctor or an occupational health specialist.
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.
In this article, we cover the practical steps an employer must take to obtain a medical report on an employee, whether from their general practitioner (GP), a specialist consultant, a company doctor or an occupational health specialist.
Whose information can be accessed?
Medical information can be sought on anyone who is, or is seeking to be employed.
An employer may access any report supplied by a medical practitioner, as long as it is for employment or insurance purposes.
Why an employer might want to obtain an employee's medical information?
There are reasonable circumstances in which an employer may want to find out the medical condition of a current or prospective employee. These are:
- for a pre-employment check where health or physical ability is a relevant factor for the job (what is relevant and how relevant are both subjective)
- 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 that 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 statutory sick pay (SSP) or benefits under a permanent health insurance (PHI) policy
The procedure for accessing medical information
An employer may apply to see a report only if it has notified the employee concerned in writing that it intends 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 a statement of rights summary.
Employers should obtain an employee's written consent and supply this to the doctor as proof.
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 to agree that it can be sent directly to the employer
- to consent to the application, but indicate that they want to see the report before it is supplied to the employer (as under Section 4(1) of the Act).
If an employee has agreed that the report can be sent directly to the employer, then there is little opportunity for them to change their mind and request access to the report.
That means that for an employer to see the report, the doctor must either send a copy of it directly, or send it to the employee first. The doctor is entitled to make a reasonable charge for either.
Information exempted from access
A doctor is not obliged to show the employer any parts of the report that they believes might cause serious harm to the employee's physical or mental health or that of third parties. Nor are they obliged to show the employer information concerning third parties without the permission of the third party.
Enforcement
An employee may apply to the county court for an order compelling their employer to comply with any of the provisions of AMRA. Given the monetary and time cost of doing so, for many employees, this is unlikely to be a viable option unless the circumstances are serious.
Further, employees are not able to seek damages for their employer's failure to comply with AMRA and neither are employers liable for any fines for a failure to comply. So going to court may result in the employer being forced to follow the rules, but not in compensation to the employee for a previous failure to follow them.
However, 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 Data Protection Act (DPA) applies to all personal data held about employees that is collected, stored, used or otherwise 'processed' by the employer.
Information about an employee's health is classed as sensitive personal data. As such, under the DPA, the employer must either have an employee's specific written consent to use it and store it, or the employer must comply with one of the conditions in Schedule 3 of the DPA.
Documents you might need
Net Lawman sells draft letters that will assist you in the procedures described in this article.