This month’s newsletter considers what an employer can do when employees do not engage with occupational health.
This can take the form of refusing to attend statutory health surveillance or any occupational health appointment. We quite often see a refusal to allow our letters to go to the employer.
What can and should the employer do in these circumstances?
Refusal to attend Statutory Health Surveillance:
This is a Health and Safety issue. The need for Health Surveillance comes from Risk assessments and legal requirements.
It is not a “nice to have” or an optional extra.
Therefore a refusal to attend should be treated exactly the same as refusing to attend mandatory Safety training or wearing PPE.
As an employer someone refusing to attend does not mitigate your risk. Therefore at the very least the employee should be deployed away from the area of risk until such time as they engage with health surveillance.
At OHC we are always happy to talk to any employees regarding health surveillance to allay any fears they may have.
Please note that if an employee says that they are under the care of their GP for a related condition this DOES NOT mean they do not need health surveillance.
If health surveillance is required it is perfectly reasonable for the employer to make attendance a condition of service.
Refusal to attend an Occupational Health Referral Appointment.
Sometimes an employee can have a genuine fear about attending an appointment with Occupational Health. Frankly that fear is sometimes well founded.
We provide Independent Medical Assessments.
The vast majority of people we see find our advice to employers useful and supportive. We hope the employers find the same!
However as our advice is independent occasionally this can have a detrimental effect on the employees’ job role.
For example they may have a medical condition that is made worse by work so our advice may lead to job loss or re-deployment.
They may be referred to see if unhelpful behaviours are caused by ill-health. If the answer is no or only a little bit this can leave employers free to follow a disciplinary route for the employee.
However for employers a refusal to attend occupational health simply means that you will have to rely on the only available evidence. This means that any mitigation we can provide for “bad” behaviours such as aggression is not available to you. It also means that if you cannot ascertain the safety of an employee in a role you will need to redeploy or suspend from those duties.
It is worth exploring with the employee why they are refusing to attend. Again we are always happy to telephone an employee stop or allay any fears PRIOR to an appointment.
Refusal to allow our report to go to the employer.
So the appointment has taken place. The employer is going to pay for it! The employee won’t let us send the subsequent report.
Here it might be helpful to “unpack” the process of consent and refusal.
Employee sees adviser/physician/psychiatrist. They are seen in the context of a Management Referral which asks the questions the employer needs answering regarding the employees work situation.
When they get to Occupational Health the clinician explains their role.
A consultation takes place. The clinician explains what they are going to write in their report. The General Medical Council Guidelines state that the employee should have “no surprises” regarding the content of the letter.
The employee then signs a consent form which has 3 options:
1. Letter goes at the same time to employer/employee. This is obviously very simple to administer so no issues.
2. Employee does not wish to see letter: Again no issue for employer.
3. Employee wishes to see letter PRIOR to employer.
If option 3 is ticked the letter is typed and sent to the employee. They have 5 working days to either allow letter to go/provide FACTUAL amendments/Refuse to allow letter to go/ Provide supplementary information to be attached to the letter to the employer.
What can they change? Factual information for example: Date of Birth/Objective data re job role/ Dates and times.
What can’t they change?
Anything else including our medical opinion/recommended adjustments etc.
What can OH do if they refuse?
Let employer know. We can also offer advice such as “Not fit for Safety Critical Work”, “Not fit to work with vulnerable people”, “Not fit to work with respiratory sensitisers”.
EMPLOYERS NEED TO FOLLOW THIS ADVICE
What can the employer do?
They really need to follow any advice we give: We haven’t plucked it out of thin air.
They then need to deal with the employee on the basis of the evidence they have without the mitigation of any occupational health advice.
Call us today and take the first step to a safer work environment.