Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, discuss what employers need to be aware of when seeking to obtain further medical information from a sick employee’s team of health providers.
The question:
An employee has MS and has been absent for a while. This has been a little difficult to manage due to the Disability Discrimination Act (DDA) implications to the sickness. In order to advise management more effectively, I’m thinking of asking our occupational health (OH) doctor to obtain more information from the employee’s team of health providers, i.e. doctors, consultants etc, as our OH doctor has not been able to give us any advice that could help beyond what he ‘feels’ when he sees the employee, which has been for about 15 minutes on a couple of occasions. Is there anything I should be cautious of whilst asking for it?
Legal advice:
Esther Smith, partner, Thomas Eggar
Not at all. I think this is a very sensible step here, and one a responsible employer should be taking. With any medical condition, the employer needs to obtain as much information about the employee’s health and how they are affected by their condition and should take all reasonable steps to obtain this.
This does not just apply when considering a possible capability dismissal on the grounds of continuing ill health, but also important when considering your obligations under the DDA to make reasonable adjustments. Even if the condition is not one that is covered by the DDA, I would advise that the employer still try to obtain all relevant information in order to ensure that it complies with its general duty of care towards the employee in question.
You will obviously need the employee’s consent to contact their medical team but I would hope that the employee will not have a problem with this, particularly if you explain that you are keen to fully understand their condition and current state of health. You should consider contacting some MS charities and support groups, of which there are many, as they will be more than willing to provide you with advice and guidance on the condition itself. It may also be worth asking the employee whether they have a support group or association that they use or who they would recommend you speak to.
However, one thing to bear in mind when obtaining information from these organisations, is that you need to look at the situation on a subjective basis, in terms of how it affects this particular individual, rather than on a generic basis as to how MS generally affects people who suffer from it.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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Martin Brewer, partner and employment law specialist, Mills & Reeve
No there’s nothing you should be particularly cautious about. You are right to seek an expert report rather than rely on OH. You will need the employee’s consent to seek the report and it will be subject to the requirements of the Access to Medical Reports Act, which essentially gives the employee the right to see and comment on the report if he/she wishes.
This employee is clearly disabled for the purposes of the DDA, so rather than ask for a generalised medical report I advise you ask a set of specific questions as follows:
- What is the precise diagnosis?
- What is the short, medium and long term prognosis?
- What is the current extent of the employee’s abilities?
- Will this change over time?
- If so, how and over what period?
- How often will the employee need to attend medical appointments?
- Is the employee on medication and, if so, does this impact on their ability to do any aspect of their work or any work type?
Along with this you should send a description of the employee’s work to assist the doctors in answering your questions. The danger of not doing this is that you have a very ‘medical’ based response which doesn’t actually help you assess the employee as a worker.
Martin Brewer is a partner at Mills & Reeve. Martin can be contacted at: martin.brewer@mills-reeve.com
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One Response
People first
Would it be too much to ask the employee what the reasonable adjustments are to the workplace? After all they know the work, they know what is expected of them and what they are capable of and therefore are the most expert to suggest what is the best adjustment to make in the first instance.
Take care about getting involved with the health and although no legal expert I disagree with “the employer needs to obtain as much information about the employee’s health” An employer needs to know about the EFFECT on the work and ability to do the work not the condition itself. This is an important destinction because the employee can tell you that but you dont need to know the ins and outs of the conditions as is suggested here.
As you will of read if the suggested adjustment is not reasonable you will need to take other action but please start talking to the individual first.
An example-
An employee could not reach the lift buttons and this was clear at interview. The start date was delayed and the lift engineers called. £10k+ was spent altering the buttons and making them an accessable height. The start day loomed and the new-hire came in with a stick as she realised she needed something to reach the lift buttons!
If only they asked. Have an adult conversation and you may be surprised how adaptable your employee is.
The rush to the law and medical specialists does not always give the most expedient solution and can always be explored later.