|
To find out how we can make such an impact on your recruitment needs
Contact us on:
Northampton
01604 239555
Kettering
01536 416615
|
|
 |
|
|
|
| Industry News |
 |
Sickness absence - Medical examinations and questionnaires
October 2008
As you have been experiencing a high level of sickness absence, you want to use a pre-employment health questionnaire and introduce compulsory medical examinations. What are some of the key issues you need to consider?
Are questionnaires worthwhile?
It’s common to hear that pre-employment health screening is contrary to the Disability Discrimination Act 1995, but this is wrong. However, asking applicants about their health is defined under the Act as “arrangements” made by an employer for selection, and this should not disadvantage people with disabilities. To avoid discrimination, you will need to make enquiries about any evidence of ill-health to establish whether the person is disabled or not, and then attempt to make any reasonable adjustments.
Help at hand. The Disability Code of Practice on Employment & Occupation provides useful guidance. Questionnaires should be drafted to make it clear to the applicant that they are giving permission for you to make enquiries of their medical practitioner if necessary, and that the information will be managed under the Data Protection Act 1998.
Contractual medical examinations
Include a written clause in employment contracts so that the employee has not only given consent to being medically examined at any time during their employment by your occupational health advisor (OHA) at your expense, but also to disclose any medical report prepared by a medical practitioner responsible for their clinical care (see The next step) However, under the Access to Medical Records Act 1988 the employee must give their explicit informed consent every time an examination or report is requested. This will normally happen at the end of a period of sickness absence to confirm their ability to return to work.
Un-cooperative employee
Should an employee, without good cause, refuse to comply with an examination request, you can treat this as a fundamental breach of the implied term of trust and confidence, resulting in gross misconduct and a summary dismissal. In Briscoe v Lubrizol 2002 the Court of Appeal decided that the employee could be dismissed without warning when he refused to attend a meeting to discuss his ill-health absence without explanation or excuse.
Know the score. It’s advisable for the contract clause to spell out the implications of failing to reasonably co-operate with you when you have a just reason for asking them to attend a medical examination. In many instances your OHA will need to see the employee’s own GP’s records in order to come to a sound diagnosis. To enable them to obtain this information, the employee should be asked to give their consent in writing, preferably using a standard letter or form (see The next step) If the employee is on sick leave at the time and refuses, you could refuse to pay contractual sick pay and even SSP if you have reasonable grounds to believe the absence is not genuine.
Tip. To avoid uncertainty and disagreements with employees, insert a clause into employment contracts requiring them to undergo medical examinations and give consent to disclosing medical information. But, you will have to ask them to give informed consent every time you request an examination or disclosure.
To avoid uncertainty and to ensure that you don’t fall foul of the law, add a clause to your contracts that enables you to require staff to undergo medical exams etc. Use our free samples to make life easy.
Source: Tips & Advice (Personnel) – Indicator September 4 2008
« back
|
|
|
