Occupational Health Reports

Occupational Health:

The duty of your employer’s Occupational Health Department (OHD) is not to you as the employee, but to the employer – Kapfunde v Abbey National and Daniel [1998] IRLR 583 (CA)

“A doctor retained by an employer to carry out medical assessments of its prospective employees owes no duty of care to those prospective employees in carrying out and reporting the conclusions of such assessments to the employer.”

Thus, when the employer makes a referral to its OHD, you need to be aware that the report obtained from OH could actually be to your disadvantage; especially when assessing your fitness to attend fact to face meetings for either a grievance or disciplinary hearing.

However, In the case of Gallop -v- Newport City Council [2013] EWCA Civ 1583 the Court held that there existed a duty on an employer to consider if the employee is disabled, even when the Occupational Health Report says there is no disability. Put short, the Court held an employer cannot just ‘rubber stamp’ an Occupational Health Report.

The dilemma here is whether to consult your employer’s OHD or not.

My view is always to be seen to be acting reasonably. However this is not to say you have to actually act reasonably.

Case in Point:

In 2013 I helped a client who was being forced to attend her employer’s OHD under damoclean duress (Google Sword of Damocles). My client had a fit note from her GP which stated that she was unfit to attend face to face meetings germane to the employer’s Disciplinary Policy & Procedures.

Put short, the employer wanted its OHD to state that my client was fit to attend face to face meetings. The employer wanted to subject my client to a Disciplinary by fair means or foul.

The employer insisted that my client was contractually obliged (as part of the employee’s terms and conditions of contract of employment) to consult the employer’s OHD. The employer wrote that a failure to do so would amount to a breach of contract.

Consequentially, I suggested that my client attend the arranged appointment with the employer’s OHD. I wanted my client to be seen to be acting reasonably. However, whilst there was a contractual duty for my client to be assessed by the employer’s OHD, pursuant to s.4 and s.5(1) of the Access to Medical Reports Act 1988, my client was within her legal rights to refuse the Occupational Health Report being released to her employer –

“Where an individual has been given access to a report under section 4 above the report shall not be supplied in response to the application in question unless the individual has notified the medical practitioner that he consents to its being so supplied.”

Thus, we had met the contractual terms of the employer’s contract of employment. My client had undergone an assessment as per her contract of employment. However, we had refused the employer receiving the actual Occupational Health Report (OHR) by reason that this was my client’s legal right pursuant to both s.4 and s.5 of the Access to Medical Reports Act 1988.

Put short, we had outwitted the employer.

Notwithstanding, the fact remained that the employer was already in receipt of a letter from my client’s GP to state she was unfit to attend face to face meetings to attend the Disciplinary Hearing. As such, the employer was already in receipt of ‘medical evidence’ to substantiate this fact.

Therefore, we relied on paragraph 16 from the case precedent of Merseyside and North Wales Electricity Board -v- Taylor [1975] ICR 185] –

“The Court of Appeal made observations on the significance of a medical certificate, but in the absence of any contradictory medical evidence, the thrust of the decision is that in that case a tribunal should not go behind what appears on the face of the medical certificate. In my view, that principle applies equally in construing this contractual terms. It was not open, once that medical certificate had come in, for the Respondent to maintain any doubt as to the reason for absence in the absence of any contradictory medical evidence.”

Put short, as the employer had no medical evidence which was contrary to the letter from my client’s GP, the medical evidence from the GP won the day.

Referral to Occupational Health:

In another case, I had a client who had attended her employer’s Occupational Health Department 5 times in a space of two years. In each case, the OH Doctor was bias in the employer’s favour, basically writing what the employer wanted.

I considered this to be a ‘bought medical opinion’.

As such, on the 6th visit to the same OH Doctor, I had my client attend with her mother. I also instructed my client to inform the OH Doctor that the mother was there to take notes. In addition, I instructed my client to inform the OH Doctor that she was recording the conversation on her i-phone, and if the submitted OH Report did not reflect that which was recorded, then my client would report the OH Doctor to either the General Medical Council or his equivalent governing body.

I can state as a matter of fact, it was the first ‘honest’ OH Report, which my client had ever received. There was no way the OH Doctor was going to risk an investigation by the General Medical Council for the sake of a couple hundred quid.

I have used this same tactic previously. On another occasion my client had a hostile OH Doctor who was ‘indifferent’ to my client.

I wrote my client a letter to give to the OH Doctor upon attending the consultation. The letter basically stated that if the Doctor gave a report, which put my client at a disadvantage because of something arising in consequence of her disabilities, that my client would adjoin him as an additional named respondent in any civil proceedings, which she brought against her employer for disability discrimination.

On this occasion, the OH Doctor refused to undertake the assessment. He did not wish to become embroiled in a potential legal dispute between the employee, and her employer.

The moral to the story is that on occasions, the OHR can be a ‘professional medical opinion’ which is ‘purchased’ by the employer, and moreover, in the employer’s favour.

Equally, however, I have seen many OHR which are scathing about the employer, and which point out the employers’ duty of care to the employee under the HSAWA 1974. There is no saying whether the OHR will be for, or against you.