Occupational Health assessment on return to work

wizzards · 9 January 2019 at 11:06PM

I have been very ill for six months with a Pituitary Adenoma. This has now been shrunk to almost nothing with drug treatment which is excellent. My consultant has given me a letter stating I can return to work. Since then I had a one off seizure due to too much of one of the medication. As a precaution I now have a low dose of a new medication to prevent any more seizures. I do not drive as part of my job and my consultant has given the green light to return to work. I can get to work by train and am allowed to do 3 days at home working.

I had very bad experience with the companies occupational Health provider. In particular they way they obtained consent to my medical records. In my contract of employment there is no clause saying Occupational Health assessments are Mandatory.
My boss arranged a new appointment and I went but I was not happy with the conditions I had to sign up to regarding access to my medical data. The forms seemed to allow the health provider to make reports which I could not stop reaching my employer if I objected to the content.
I gave the occupational health provider a letter stating my concerns and also a copy of my consultants fit to work letter. I also suggested if they need more info they can write directly to the consultant.

Given I have a letter from my consultant which I am going to get updated with details post seizure am I obliged to undergo an assessment. I am not looking to have special treatment or a phased restart to work as I have had a month holiday. Can they force me to undergo this assessment. I am under the care of hospital doctors and have a dedicated nurse I can call if I have any problems. The condition is not affecting my work capability as far as the consultant is concerned.

Are there any risks if I don't do the assessment. Obviously if I have issues later on my employer may be less sympathetic.

Initially my boss said I would have to stay on reduced pay and work only a few days a week until I completed an assessment as he thought my total sick time has exceeded 6 months. I think he was saying this to pressure me into agreeing to go. He then talked with HR and they changed their minds about that and said no loss of pay.

elsien · 9 January 2019 at 11:14PM

Your consultant may say you are fit to return to work capability wise however he does not know the specifics of your job and what it involves. That's where OH comes in, to carry out that assessment on the employer's behalf. You could be fit for one role but not another.

For example, I had an employee who was off for months and had a colostomy. They were signed as fit by the consultant however it was a challenging behaviour unit, so we had to check out the implications of the person potentially being hit in the area of the colostomy. That would never have crossed the consultant's radar.

Your employer is covering themselves as well as protecting you. If you decline to attend it couid have an impact on how long you have your job for.

Xbigman · 10 January 2019 at 7:52AM

Put simply

Can you refuse an OH assessment - No
Can you demand a different OH company - No
Can you request a different OH company - yes but your employer can refuse.
Can you stop the OH company writing a report - No.

The only issue you have any traction with is the open ended authorisation to access medical records. You can write to the OH company and give them permission to contact your consultant and GP about your treatment/condition regarding your Pituitary Adenoma and subsequent seizure only. If they then refuse to deal with you that is their choice.
Whether you want to go down this route or not depends on your personal judgement about your employer. Are they completely anal and likely to kick off over this or are they reasonable. Only you can judge that.
If your employer decides they want you out they can usually do it.

Darren

Takeaway_Addict · 10 January 2019 at 10:13AM

Xbigman wrote: »

Put simply

Can you refuse an OH assessment - No
Can you demand a different OH company - No
Can you request a different OH company - yes but your employer can refuse.
Can you stop the OH company writing a report - No.

The only issue you have any traction with is the open ended authorisation to access medical records. You can write to the OH company and give them permission to contact your consultant and GP about your treatment/condition regarding your Pituitary Adenoma and subsequent seizure only. If they then refuse to deal with you that is their choice.
Whether you want to go down this route or not depends on your personal judgement about your employer. Are they completely anal and likely to kick off over this or are they reasonable. Only you can judge that.
If your employer decides they want you out they can usually do it.

Darren

Of course you can refuse an OH assessment, the downside to doing so is that it makes your employers job of dismissing you that bit easier.

Xbigman · 10 January 2019 at 4:44PM

Of course you can refuse an OH assessment, the downside to doing so is that it makes your employers job of dismissing you that bit easier.

*********

That's complete rubbish. If an employer has any doubts about your fitness to carry out your job they can make an OH or company doctor appointment for you and you would have no reasonable grounds to refuse. You can put up some resistance but ultimately you go if you want to keep your job.
I've seen my own colleagues go to the company doctor and refuse to be examined, refuse access to medical records and refuse to answer personal questions. But they had to go if they wanted to return to work and be paid.

Darren

Undervalued · 10 January 2019 at 5:13PM

wizzards wrote: »

Do you really think its reasonable for my employer to expect that I should trust these people again ?

Well you clearly don't but ultimately it doesn't matter what people on here think!

What is relevant is where this goes next. If you are dismissed and it ends up at an employment tribunal would you win and even if you do is the likely outcome preferable to keeping your job?

It is perfectly reasonable for an employer to want an expert medical opinion. If you are not happy with that opinion you have a right to say so and you are of course free, initially at your own expense, to seek an alternative medical opinion. If that is more favourable and you present it to your employer they may well want a third opinion!

Unless you comply with all requests from your employer that a tribunal is likely to find reasonable you will struggle to win any unfair dismissal claim. Obviously that is not absolute, it is all a question of degree and the old lawyer's friend of what is reasonable.

Have you had any professional advice about all this? I certainly wouldn't recommend refusing a medical appointment the employer requests without good legal advice. In the vast majority of cases all it can do is weaken your position.

I would also resist the temptation to be overly pedantic about the finer points of the GDPR and doctor's names missing from forms.

wizzards · 10 January 2019 at 5:35PM

See also here from the GMC https://www.gmc-uk.org/ethical-guidance/learning-materials/disagreement-with-an-occupational-health-report

I think that clarifies the basics of refusal in my mind.

In my case I went to the appointment and provided a report from my consultant and gave written consent to approach my consultant if there were further questions. Any answer I said would have to be approved by sending a copy to me before it went to this private company. The doctor would have to do that or get a consent form anyway.

The occ health company refused to do the assessment unless I signed the access to my medical records forms and also the forms to send the report to my employer. In their way of working I get two days to see the report before its sent to my employer and it didn't say I have the right to stop it.

Takeaway_Addict · 10 January 2019 at 5:36PM

Xbigman wrote: »

Of course you can refuse an OH assessment, the downside to doing so is that it makes your employers job of dismissing you that bit easier.

*********

That's complete rubbish. If an employer has any doubts about your fitness to carry out your job they can make an OH or company doctor appointment for you and you would have no reasonable grounds to refuse. You can put up some resistance but ultimately you go if you want to keep your job.
I've seen my own colleagues go to the company doctor and refuse to be examined, refuse access to medical records and refuse to answer personal questions. But they had to go if they wanted to return to work and be paid.

Darren

So, you've just confirmed what I said...you can refuse but there are consequences and it makes it easier to dismiss.

But it should be noted that refusing doesn't guarantee dismissal is fair either, there will have been occasions where someone has been dismissed after refusing to see OH and had it found in their favour when it got legal

Undervalued · 10 January 2019 at 5:40PM

wizzards wrote: »

If they offered me a redundancy package on the same terms they offered others recently I would take it as I have 28 years service. I already have a few other job offerings in the pipleline. I would be stupid to walk away without a package.
I would have thought the laws regarding the handling of personal data, especially medical data would be severe both at my employer and at my GP. I am looking at pursuing the private health company separately if possible for breaches in this respect.
In terms of my employer I have said to them I am perfectly OK to have a health assessment but when I was there last week the assessor was not keen to even read the medical report from my consultant or letter detailing my previous experience of the other 3 health assessments that I brought with me. I had really to say please read this document 3 times before she would even look at the documents.

Also they seemed to have no details of my previous assessments. It seems that they think this is a new case. The fact that my condition is exactly the same as it was when I saw them on 3 occasions six months ago. The only difference being it has been successfully diagnosed and treated.
Surely the role of the OHS is provide occupational health for a known diagnosis rather than make wild assumptions of what could be wrong where the GP has failed to do anything for the patient other than give them Vitamin D tablets.

That might get them a slap on the wrist or even quite a big fine. However it doesn't help your employment dispute in any way. In fact all it is likely to do is destroy any remaining goodwill they have towards you.

You can always do that after you have left if you really want to!

The role of OH is to advise the employer how your condition may affect your work and to suggest any reasonable adjustments that may help you return to work.

It also means that any personal medical information is only shared between medical professionals and only what is absolutely necessary is passed to your employer in a form a lay person can understand.

Undervalued · 10 January 2019 at 5:45PM

wizzards wrote: »

If they offered me a redundancy package on the same terms they offered others recently I would take it as I have 28 years service. I already have a few other job offerings in the pipleline. I would be stupid to walk away without a package.
.

Nobody has a right to be made redundant. In fact your employer has a duty not to make you redundant unless you job no longer needs doing.

That is completely separate to your medical fitness (or otherwise). If you are not medically fit to work (even with reasonable adjustments if disabled) then your employer can lawfully dismiss you just by giving you 12 weeks notice. There is no entitlement to a "package" under those circumstances.

Undervalued · 10 January 2019 at 5:54PM

wizzards wrote: »

The occ health company refused to do the assessment unless I signed the access to my medical records forms and also the forms to send the report to my employer. In their way of working I get two days to see the report before its sent to my employer and it didn't say I have the right to stop it.

It is perfectly reasonable for them to want access to your medical records to compile an OH report. In fact it could be argued they were being negligent if they did it without!

You don't have a right to stop a report being sent once you have agreed to having one produced.

You do have a right to ask for changes and if you are unable to agree have a statement of your views added to the report.

Occupational Health assessment on return to work

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