Health Work and Wellbeing (HWWB) - Getting a Medical Opinion
This is another article in the Heath, Work & Wellbeing series.
Whether you are managing someone on long term sickness absence or someone who has frequent short term absences, a medical opinion should be valuable to both you and your employee. It can establish what might be done to help the individual back into the workplace and should help you both make decisions as to what the future holds.
However, all too often the commissioned medical report fails to meet the needs and expectations of HR professionals and, indeed, those about whom the report is written. So, what can be done to get the most out of a medical opinion?
From the outset it is good for HR professionals to set their own expectations by remembering that a medical report is but one cog in the wheel of managing sickness absence. If you anticipate a doctor making a decision for you, you are likely to be disappointed. Medical reports are part of your decision making process which must include not just the needs of the individual but also the needs of the business.
Where to go for the report is perhaps the first hurdle. You may contract with an occupational health provider; you may decide that your needs are minimal and a ‘call off’ contract with a local general practice may be all you require. Getting a report from the employee’s own general practitioner is another option and has the benefit of prior knowledge but many doctors find themselves with a conflict of interest; their relationship and focus, quite rightly, is with their patient and introducing an employer dimension can be uncomfortable both for them and their patient.
When commissioning a medical report, it is really important that the examining doctor has a clear idea of what the patient’s job entails. S/he cannot give a clear opinion as to whether or when the employee might be able to return to work, or what adjustments might be required, if they have little idea what ‘work’ involves. Doctors complain that organisations often simply provide them with a copy of the relevant job description which is meaningless if they do not know the trade or organisation well- and job descriptions often include abbreviations and/or jargon which are as clear as mud to an outsider even if they are crystal clear to the HR professional in that organisation !
Doctors tell us they need to know things like:
- Is there lifting involved and, if so, how heavy and how frequent?
- Is it a sedentary job or is the employee on their feet all day?
- Are the required levels of concentration high, low or intermittent?
- Is the job based on site or is there a lot of travelling?
Taking time to provide this kind of information will mean that the resultant report is well focussed and useful to both you and your employee.
The second and equally as important thing is to ask the doctor clear questions. S/he will then know what it is you need to know and it will help to remove opportunities for obfuscation. The focus of your questions should, of course, be on what needs to be done/happen to help the individual back into the workplace and not “please give me ammunition for dismissal” which is unlikely to elicit a helpful response from any doctor ! If the doctor thinks a return to work is unlikely they will find a way of telling you – most doctors are employers too!
Useful questions include:
- Which elements of the job pose the employee the greatest difficulties?
- Which elements of the job can the employee undertake without difficulty?
- What adjustments can I make to help the employee back to work?
You may also want to consider asking questions which help you decide whether the employee is likely to be covered by the Disability Discrimination Act. Things like:
- Is the employee’s condition likely to last longer than a year?
- Is the employee likely to make a full recovery or is this a chronic condition?
Of course, people recover from illness at different speeds so it is best to try not to ask questions like “will the employee be recovered next week/month?” but rather ask “what is the average rate of recovery for this condition?” as this will at least give you a benchmark.
It is really useful to ensure that your absence policy covers the fact that you will seek a medical opinion at a specific trigger point. This will ensure that there are no surprises for an individual asked to consent to a medical report, s/he will know that it is simply part of your procedure and that they are not been treated any differently to others in a similar situation. Experience shows that you are more likely to get consent if the employee anticipates the request and knows others for whom it has been helpful.
The Access to Medical Reports Act 1988 allows the employee to see the report prepared by the doctor; they can even opt to see the report before it lands on your desk. This means that if there are any queries the employee can direct them to the doctor without you being caught in the firing line. It is good to provide the employee with a résumé of the Act when you ask them to sign the consent form.
Once you have the report, it helps to discuss it direct with the employee. If the reports suggests some adjustments in the workplace it is particularly important to talk them through with the individual, Employment Tribunal claims have been lost simply because employers did not discuss what was needed directly with the employee.
It perhaps goes without saying that it is important to keep a clear audit trail of everything you have done to assist the employee back into the workplace. If a capability dismissal happens and you are unfortunate enough to get an Employment Tribunal claim, that detailed file may be all that stands between you and a compensation order.
On the subject of files, it may tempting to share the medical report with the employee’s line manager but that could be an expensive mistake. The report is covered by the Data Protection Act and it should be kept separate from the individual’s personnel file, locked in a non-portable cabinet. Of course, you will want to talk through potential adjustments or capability procedures with a line manager but not the detail of the medical condition.
What can you do if an employee refuses to consent to a medical opinion? Unless it is a contractual obligation, the answer is of course ‘nothing’. As we said earlier in this article, a medical report is simply information to feed into the decision making process. If the employee is reluctant to let you have information which may be vital to their future, there is nothing you can do other than to make the decision based on what is available to you. Finding a way of saying that without being perceived to be bullying can be quite challenging and we think it is best done in writing with a copy carefully filed as insurance for the future.
Finally, you may wish to consider how you deal with those things which keep an employee out of the workplace but which are not strictly ill health issues. Things like IVF and cosmetic procedures. Consistency of approach is important both for maintaining employee engagement and for defending your procedures if necessary. After all, we all like to know that we are being treated equitably even if we do not agree that the approach is fair!
