This is an important read for the HR department, and data protection officer of any organisation in the UK, as it helps to provide clear guidance and structure.

The guidance recognises that in some instances, collecting health information is required as part of someone’s employment. However it also recognises that this is intrusive, so should be limited only to the minimum information required, and only when it is required, and that an employer should respect an employee’s privacy when handling their health information.

Here are some of the key features of the ICO guidance in relation to handling employee health information:

• You should consider how you will use the information, and why you need the information
• You should be clear and transparent about why you are handling the health information
• You must record your purposes for handling this information as part of your documentation
• You should not handle more information than is required, and should not request information just in case it could be useful in the future
• There should be a lawful basis for handling this information
• The information must be kept confidentially and securely
• The information must be accurate wherever possible
• It should not be kept for longer than you need it, and you should have a retention policy
• You should leave it to medical professionals to access and interpret detailed medical information, for example when making decisions about fitness for work

It is this final point that is commonly ignored, and subsequently dealt with ineffectively by employers.

The ICO guidance attempts to capture the essence of the relevant data protection law, by ensuring that employers are acting reasonably and responsibly when it comes to health information. Part of this involves ensuring that you aren’t collecting intrusive medical information with a view to making clinical judgements yourself, as this falls within the remit of your occupational health service.

An example that the ICO provide is about health questionnaires for workers to ensure they are medically fit to work in their job role, and states the following: “It is good practice for health professionals to design health questionnaires. This also means the questionnaires should be interpreted by those who are qualified to draw meaningful conclusions from the information supplied by the worker.”

So if part of your recruitment process involves fitness for work checks, do not use your own health questionnaires to make these decisions. You must use an occupational health provider such as Smart Clinic, who operates a service called a pre-placement screening, where an employee completes an assessment directly with the occupational health provider, so as not to reveal confidential medical information to their new employer, and so that any clinical decisions and advice can be made by a suitable qualified professional.

Similarly if you have a situation with an employee where their work is potentially impacting upon their health, or their health is potentially impacting upon their work, be careful not to explore this too deeply yourself, as you’re in danger of collecting unnecessary medical information, and then inadvertently making decisions on an employee’s ability as a result.

If you would like more advice or would like to begin using Smart Clinic for your occupational health service, please contact us today and our client team will be delighted to get you set up.

Remember, for many employees being referred to occupational health can be an intimidating experience. So it’s important to reassure employees that occupational health is a supportive measure, not a punitive one.

One of the primary intentions of occupational health is to provide advice to management, enabling them to manage an employee (and their health situation) effectively and appropriately. This could mean understanding what an employee can and can’t do and putting in the necessary support to help them at work.  

On the whole, work is good for us. Wherever possible it’s generally better for us to be at work than not, and you don’t need to be 100% fit in order to be at work. A referral to occupational health can help an organisation to ensure staff are working as much as possible, and that an employee is getting the support they need without being asked to do work that they’re unable to do for health reasons.

Below are five instances in which you may consider a referral to occupational health.

1. In the early stages of an absence

When an employee is absent, involving occupational health as early as possible is helpful. There are a few reasons for this, but primarily whatever you are going to do to support the employee is best done as soon as possible.

An early intervention from occupational health means that both the employee and the employer receive clinical advice early on. The employee has information on how to manage their own condition and can seek the appropriate medical care as required. This early intervention helps to prevent the condition deteriorating and speeds up the recovery process.

At the same time a manager can understand and support with a health condition immediately, making the support considerably more effective. This could be as simple as making the employee feel valued and cared for, or could help the employee to continue working with amended duties instead of being off work.

2. When an employee is considering a return to work

A common use for occupational health is for advice on when an employee is returning to the workplace following an absence.

Ideally you will have already had an occupational health assessment with the employee, but no drama if not. At this stage occupational health can confirm that an employee is ready to return to work in some capacity, and provide advice on what this return to work plan may look like. Does the employee require any temporary adjustments? Are they fit to do some or all of their role? Will they need a gradual build up of duties at all?

This use of occupational health covers you as an employer, because it demonstrates that you’ve taken the appropriate advice to ensure an employee is safe and healthy enough to do their job. It also promotes a more sustainable return to work by ensuring they aren’t taking on more than they can manage and subsequently going off sick again.

3. When an employee discloses a health condition and may need support

An employee has bravely confided in you about their health condition, and you aren’t sure what needs to be done to support them or whether they need any adjustments in the workplace. This could be a physical health concern such as asthma or back ache. It could also be a mental health concern; perhaps your employee struggles to manage their anxiety.

As a line manager it is highly unlikely that you will be qualified as a medical professional, which means you probably aren’t going to be best place to make decisions on what treatment or support would best help the employee to manage their condition.

This is where an occupational health referral can help. You will receive the advice and information you need to support the employee with managing their condition, ultimately helping them to continue successfully completing their job and preventing any future absences.

4. When an employee may not be able to do their job

In some unfortunate circumstances it can be possible that an employee can no longer do their job due to their health.

In such an instance there are any number of possibilities you could consider as a manager, such as dismissal, redeployment or retirement (see point 5). However you are unlikely to be able to make a judgement on an employee’s future ability to perform their job, so it’s important to ask for occupational health advice.

Case law has been very clear on this in the past. Employment tribunals and court cases will never side with an organisation who has made such a decision without obtaining the necessary medical input first – so use your occupational health provider!

5. When an employee is considering retirement due to their health

If an employee is unable to perform their role due to ill-health, and it seems likely that this will extend to their normal retirement age, then ill-health retirement can be an option.

The law surrounding ill-health retirement is complicated and not a decision that can be made by the employer alone. Most pension providers including local government pension schemes will insist on a decision from occupational health. So contact your occupational health service to help you through this difficult time!

Overview:

An employment tribunal has determined that Ms Allette was dismissed fairly from her role as a Care Assistant from a nursing home, after she refused to be vaccinated against COVID-19.

Summary:

Ms Allette had been employed as a care assistant at Scarsdale Grange Nursing Home for 14 years.

The management team from Scarsdale Grange imposed an instruction that all staff should be vaccinated against COVID-19 as part of their employment. Ms Allette refused to comply with this instruction, and was subsequently dismissed from her employment in January 2021.

Ms Allette made a claim for unfair and wrongful dismissal on the basis that they were “not well-founded.”

The tribunal considered whether the reason for dismissal was fair, whether the request unreasonably interfered with Ms Allette’s human rights, and whether Scarsdale Grange acted reasonably.

Tribunal conclusion: reason for dismissal

The judgement said “There is an implied term in every contract of employment requiring an employee to comply with reasonable management instructions.”

Therefore the tribunal accepted that Ms Allette’s actions constituted gross misconduct, saying “her refusal to be vaccinated was therefore an action which in the circumstances of this case, amounted to a repudiatory breach of her contract of employment with the respondent. The respondent was therefore entitled to summarily dismiss her.”

Tribunal conclusion: interference with human rights

The tribunal agreed that mandating the vaccine interferes with an employee’s physical integrity in a manner capable of engaging the rights under Article 8(1) of the European Convention on Human Rights (right to respect of private and family life). However in balancing Ms Allette’s rights against the rights of the residents, other staff and visitors, Ms Allette’s stance was deemed unjustified and therefore dismissal was fair.

Tribunal conclusion: the employer acting reasonably

The dismissal was considered to be proportionate in the circumstances, and Scarsdale Grange “acted within the range of reasonable responses of a reasonable employer”. However the tribunal did note that the employer could have given Ms Allette more opportunities to change her mind, spent more effort persuading her to get vaccinated, or placed her on paid/unpaid leave.

Scarsdale Grange were found to have acted upon the medical evidence that was available at the time. They were unaware that Ms Allette had already contracted COVID-19 so could not take that into account, as she had not revealed this at her disciplinary hearing. They were also unaware that Ms Allette cited religious reasons for refusing the vaccination, claiming that she was a practicing Rastafarian, as she failed to mention this during her disciplinary hearing too.

Overview:

Asda were found to have constructively dismissed Mrs Hutchinson, a dementia sufferer, after she was repeatedly asked if she wanted to retire but was not referred to occupational health. Although done with the best of intentions, this amounted to disability and age-related harassment.

Summary:

Mrs Hutchinson, a 75-year old shop worker from North Wales had been suffering from symptoms of dementia since 2017, initially noticed by her son.

In November 2019 she had been admitted to hospital for an unrelated consition, and on her return to work colleagues noticed a deterioration in her cognitive functioning, with Mrs Hutchinson forgetting things and losing items regularly.

In February 2020, Mrs Hutchinson began travelling to work by bus as she was experiencing difficulties driving. At this time she also told the Ms Green, People Trading Manager, that she was undergoing memory tests organised by her GP.

Ms Green also observed that Mrs Hutchinson had walked to work after being unable to find the bus stop, and when Mrs Hutchinson accepted that her symptoms we worsening Ms Green suggested arranging an occupational health appointment, which Mrs Hutchinson refused.

When Mrs Hutchinson asked Ms Green what she should do, Ms Green discussed how retirement could be an option. Mindful of her wellbeing, she also adjusted Mrs Hutchinson’s hours to avoid the need to travel to work in the dark.

Although in March 2020 Mrs Hutchinson was required to shield due to the Covid-19 pandemic, her line manager, Ms Weston-Laing, supported the claimant by reminding her about things, taking extra time to explain things to Mrs Hutchinson, and assigning colleagues to assist her where possible. She also brought Mrs Hutchinson shopping during her period of shielding.

Ms Weston-Laing kept in touch regularly with Mrs Hutchinson, and during one of the phonecalls asked Mrs Hutchinson whether she would like to retire. Mrs Hutchinson responded “no” and reportedly felt upset and unwanted. Reportedly a similar conversation also took place some weeks later.

Ms Weston-Laing denies this, stating that Mrs Hutchinson actually raised the topic by asking “What would happen if I retire?” however the tribunal found that despite Ms Weston-Laing’s “caring and supportive” approach, that on the balance of probabilities she did suggest retirement on more than one occasion.

On returning to work in July 2020, Mrs Hutchinson’s work performance suffered, as she appeared confused and forgetful. Although colleagues tried to help her (for example “rummaging” in her bag for her when she couldn’t find her bus pass), this left Mrs Hutchinson feeling upset and constituted disability-related harassment.

The judgement said of this “There may have been a way of assisting the claimant which preserved her dignity, asking her what she wanted them to do. The conduct was unwanted by the claimant and it related to her condition as it was brought about by her memory impairment. It had the effect of violating her dignity.”

A meeting was held between Mrs Hutchinson, Ms Weston-Laing and another colleague to discuss anything that the store could do to support her. However Mrs Hutchinson became upset and aggressive, saying that she didn’t need any help and if she did she would ask for it. Ms Weston-Laing again suggested she speak to occupational health, but Mrs Hutchinson asserted “I Can’t do my job, I will leave.” At this point she left the meeting, was signed off sick by her GP, and did not return to work.

The judgement wrote the following about the situation: We have some sympathy for the position that the respondent found itself in as the claimant did not want any fuss or a referral to occupational health. She was reluctant to accept assistance. However we find that the respondent ought reasonably to have known that the claimant was disabled.

“Given the background of the claimant having been asked to retire, we find that when the respondent raised concerns with her this was unwanted and created a humiliating environment for her. It was related to her disability as it was about the symptoms she exhibited as a result of her mental impairment.

“Had the respondent referred the claimant to occupational health prior to her return to work there would not have been a need for her line managers to talk to her directly about her symptoms, even though this was out of genuine concern.

“[The respondent] ought to have referred the claimant to occupational health prior to her return.

“The claimant was, we find, constructively dismissed on the basis that the conduct (which we found amounted to age and disability-related harassment, direct age discrimination and discrimination arising from disability) breached the implied term of trust and confidence.

“It is clear that these situations are very delicate. Nonetheless, employers and managers need to be aware that even seemingly well-meaning comments and actions can be held to amount to discrimination (including harassment) on the grounds of disability and/or age. Asking an older employee if they would like to retire is inevitably risky, as it can make them feel unwanted and upset, and is unlikely to be a question asked of younger employees. It is therefore quite likely that this will amount to age-related harassment.

“A better way is to ask all employees (perhaps as part of the appraisal process) what their future work plans and aspirations are. Furthermore, a retirement policy can be very helpful as it can set out a framework for employees to feel comfortable in raising and discussing their retirement plans.”

Read the full decision here.

Overview:

After dismissal for poor attendance, Mr Kelly claimed discrimination against his disability. The employment appeal tribunal found that Mr Kelly’s employer had acted properly by consulting occupational health and considering their opinion. The appeal was ultimately rejected.

Summary:

Mr Kelly was a postman working for Royal Mail. He had poor attendance due, in part, to carpal tunnel syndrome.

He was managed in line with Royal Mail’s attendance policy and eventually dismissed.

Mr Kelly took the matter to an employment tribunal, citing numerous claims including disability discrimination. However this was unsuccessful as the employment tribunal reasoned that Royal Mail did not know, nor could have been expected to know that Mr Kelly was disabled and therefore covered by the Equality Act (2010).

The case of Gallop v Newport City Council in 2013 found that employers should not simply take the advice of occupational health as fact, as it is the employer’s responsibility to make the assessment as to whether or not an employee is disabled, and that this decision should be made with the input of occupational health. However if the employer had actual or constructive knowledge of the facts concerning a disability (particularly if these weren’t considered as part of the occupational health assessment) these should also be considered by the employer.

Mr Kelly cited this argument in the employment appeal tribunal. However his appeal was rejected, as Royal Mail demonstrated they had given proper consideration to the occupational health reports regarding whether or not Mr Kelly met the definition of disability.

In other words, contrary to the Gallop case, the employer’s reliance on the occupational health reports didn’t amount to a simple ‘rubber stamping’ exercise – particularly as the reports gave reasoned and detailed explanations for their conclusions.

As such Royal Mail did not know, and could not have been expected to know about Mr Kelly’s disability, and therefore could not have discriminated against him.

The employment appeal tribunal added “the Tribunal also noted, correctly, that an employer may attach considerable weight to the informed and reasoned opinion of an Occupational Health medical consultant in reaching its own assessment.”

This case is a relief for employers. It demonstrates that employers can rely upon the advice from independent medical professionals such as occupational health advisors, when reaching conclusions about managing an employee.

However it is important to note that an employer should still take care and attention when evaluating the advice from occupational health – if there are other factors that you are (or could be) aware of, these should not be discounted. Similarly it is important to include all relevant information within an occupational health referral, so this can be considered by the medical professional. Additionally, it is important that any conclusions drawn within your occupational health reports are detailed and reasoned, substantiated by medical evidence. If you are unsure or need clarification, it is important to seek it from your occupational health provider.

Read the full decision here.