Getting expert medical opinion on an employee’s health condition is a vital element in a medical capability procedure.
Employment Tribunals place great importance on employers basing their management decisions on up to date medical opinion on the abilities of the employee in question when deciding whether to dismiss. Obtaining a medical report is therefore essential but employers should be aware of the specific rules attached to this process.
Expert Medical Opinion
When an employee is on long term sickness absence, or has frequent absences because of their medical condition, employers will be minded to seek to take action against them because of effect of that absence. If the action taken is dismissal, a fair procedure must have been followed which will involve seeking medical opinion on whether the employee is likely to return to work.
Employers may also want to get a medical report done to ensure a prospective employee meets certain health requirements before offering them a job, or to help determine whether the duty to make reasonable adjustments is triggered because an employee has a disability, in line with the Equality Act.
Who Should I Ask?
Employers can get in touch with the employee’s own GP and ask for a report to be provided. Alternatively employers can use an occupational health specialist, either the company’s own specialist or one contacted especially for the purpose, such as the governments ‘fit for work’ service.
The questions asked of the expert should be carefully designed around the employee’s job role to help ascertain exactly what effect on their role the employee’s health condition has.
The Access to Medical Reports Act 1988 requires a specific process, including employers gaining the employee’s consent to obtaining a report from their own GP. Alternatively a referral to occupational health can be made.
What Rights Does The Employee Have?
The employer must:
- Notify the employee of his intention to seek a report;
- Get the employee’s consent to the report being sought;
- Inform the employee of their rights under the Act
- Allow the employee to see the report before it is sent to the employer if the employee so requests.
The employee also has the right to ask for changes to the report if they think it contains errors.
If Consent Is Not Given
Employers should inform employees when seeking consent that if consent is not given, the employer will be forced to make a decision on any action to be taken without the benefit of expert opinion.
To try to head this off, employers can include a clause in their contractual documentation reserving the right to require an employee to undertake a medical examination where necessary.