There are particular circumstances where an employer may need to obtain a medical report for a prospective, or existing employee, for example:
where health or fitness is a determining factor of the employee’s ability to do the job and may precede the employer being able to confirm a conditional job offer, or;
where an employer needs to obtain a medical report for an employee on long-term sickness absence, to find out relevant facts, such as; when they will be able to return to work, if they will be able to return at all, and, whether or not there are any steps that could be taken by the employer to facilitate a return to work, such as a phased return, or change in working hours.
Gaining a medical report could also be appropriate where an employee has a high level of short-term sickness absence. Such medical reports can help explain whether there is an underlying cause, and if so, for how long the absences are likely to continue. In addition, the medical report may provide information on what steps can be taken by employer, or, employee, to reduce the instances of absence.
If an employer is considering dismissing an employee for reasons of capability, or, when looking at whether an employee has a disability and therefore requires reasonable adjustments at work, it would be important to gain a medical report.
Sensitive Data and GDPR
Medical reports can be obtained from a Doctor, or from Occupational Health, but the content is classed as sensitive information and GDPR provides extra protections for sensitive data. Obtaining a report amounts to processing personal data under GDPR and according to the regulations, there must be lawful grounds for processing the information.
GDPR gives extra protection to ‘special categories’ which are generally those which could be used to discriminate unlawfully against an employee. The employer needs to give a specific reason for processing the data. In GDPR terms, one given reason may be that “processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment”. This means it can be justified by stating that it meets the employer’s legal obligations not to unfairly dismiss, not to discriminate against a disabled employee, to identify reasonable adjustments where applicable and to ensure they are fit to return to work.
Requesting Medical Questionnaires and Reports
Using a pre-employment questionnaire to determine whether or not to employ someone, would contravene the Equality Act 2010 as well as GDPR, as it is discriminatory and therefore, there is no valid reason to process the data. However, a pre-employment questionnaire can be used to identify any potential issues, and to allow the GP or Occupational Health to suggest reasonable adjustments needed at work, and this is a valid reason for processing the data under GDPR.
In essence, employers need to identify the reason for processing the data i.e. consent to acquire a medical report, and be able to demonstrate that there is a requirement to process the data i.e. use of the data in the medical report, to ensure that they are not discriminating against a disabled employee.
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;
whether it will impact the ability to perform a defined role;
whether reasonable adjustments at work need to be made.
Details of a throat infection at the time of health assessment, for example, may be irrelevant to undertaking an office-based role. However, it would be reasonable to disclose information about chronic back pain, so reasonable adjustments – such as an adequate chair and desk assessment can be made before the employee commences the role, or returns to work following sickness absence in relation to that condition. It is worth noting however, that not all information would necessarily be provided to the employer, if it were not relevant.
HR have a part to play and are responsible for ensuring that any requested medical report is necessary and that the questions being asked (and answered) in the medical report, are relevant. HR will also ensure that employee consent is sought prior to any medical report and will also track and monitor the business justification for processing data.
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