Can an employer ignore an Occupational health report?

In this blog we will discuss what happens when an Occupational health report is ignored and what can be done in such a case. 

We will also discuss what an occupational health report is and what the occupational health referral process involves. 

Can an employer ignore an Occupational health report?

Yes. Your manager or employer can ignore the advice and suggestions given by the Occupational Health specialist in their report since it is only suggestion and advice. 

The inputs for accommodations are not mandatory, rather it is completely up to the manager or the employer whether they want to take up the advice or not. 

Now, it is very important that any employer should consider any advice on the occupational health report in order to make adjustments that are necessary to address any issues that have put you in a disadvantage.

However, ultimately it is their call in terms of what is reasonable for the company to accomodate or not. If they find that they are unable to make the accommodations the occupational health report has suggested they can choose to ignore it. 

However, on a positive note for the employee, ignoring the recommendations made by an occupational ehealth report puts the employers on shaky ground especially if you feel that you have been discriminated against or find that the accommodations were reasonable enough. 

What to do if an Occupational health report is ignored?

According to Seamus McGranaghan for Legal Island, ignoring accommodation advice on the Occupational health report would be a “silly” thing to do on the employer’s part. 

In the case that the employer has not taken in any advice of the occupational health report or specialist, the employee has the legal right to take the employer to Employment tribunals.

Seamus McGranaghan suggests that if the employer finds that the accommodation advice on the report is unrealizable and flawed in terms of facts, the employer can choose to ignore the report however it is best if the employer takes a second opinion with a specialist of the medical condition in question. 

Getting another assessment and report from another occupational health specialist, preferably one that is not tied to the company, could be a good place to start. 

However, in a case where this is not the issue, the employer who has not taken the advice of accommodation and adjustments given on the report will most likely have a very hard time trying to justify why they have not implemented adjustments that have been suggested by occupational health.

If you find that your employer has unjustly ignored the advice on the occupational health report, then what you can do is to bring up a case to the Employment Tribunal and claim for disability discrimination.

What is an occupational health report?

Following the consultation with an Occupational health specialist, a report is made that is written by the OH practitioner on the employee’s condition to work.

The occupational health report will include information related to the employee’s medical condition, their ability to work, their needs of accommodation and support, as well as anything that can be done to help improve their well- being like referrals to medical services etc. 

The employees have a right to see the report before anyone else and requires their consent to be sent across to their manager or employer.

Usually the employee will  be given a few days to see the report and at this time, the employee can ask for facts to be corrected. The employee has the right to disagree with what is mentioned in the report.

While the OH specialist needs to change factual  information if the employee disagrees with it and there is no factual evidence,the report should mention any differences of opinion.

The report will usually mention the condition, medical situation, and answer any questions that have been specifically brought up. 

The report is then sent to the manager as well as to the employee, HR representative and, in some cases, the employee’s GP.

The most important aspect of the report is the advice that is given to employers and managers regarding what can be done to accommodate the employee within the work space and also their condition in terms of their fitness to work.

It is based on these inputs that the manager or employer should take steps such as giving medical leave of absence, recidong work hours, providing support etc to help the employee adjust to working with their medical condition. 

What is occupational health?

Occupational health is one area of the public health domain that is concerned with the physical, mental and social well-being of workers in all occupations.

This area of public health involves promoting, advocating, and maintaining the highest degree of well-being for workers in the workplace across various occupations. 

The main role of occupational health within the workforce is to support management of health issues of employees within the workplace and are concerned with how their occupation impacts the health of the employee. 

It is important to mention that occupational health, while they are occeneed about how the work or the workplace might impact on the employee, it is also focused on how the employees’ health may impact on their performance at work. 

Occupational health within the workplace provides support to employees by interpreting medical information of employees in the case that they are unwell and to present it to Managers in a way that allows for employee advocacy as well as makes rooms for accommodations to support the employee in the workplace.

The support they provide includes providing advice to both the managers and supervisors as well as the employees in areas related to:

• How the medical condition impacts an employee’s ability to work and perform well on the job as well as the impact it has on their ability to carry out their responsibilities. 

• Workplace adjustments and accommodations for the employees well being such as reducing work hours or workload. 

• Time scales for the return of employees to work in the case they wish to take a medical leave of absence. 

• Advice and referrals to Counselling and Psychological Services or any medical services. 

• Providing employees with information related to employees fitness to return to work and  remain at their present role.

Occupational health specialists are the professionals that employees often reach out for guidance on the issues mentioned above.

What is an occupational health referral?

The occupational health referral is a process that is designed to provide advice to both employees and employers for concerns that relate to the employee’s health and their ability to do their job.

The process involves consent between employee and employer with a contractual agreement for the employee to provide such consent and to partake in a medical examination process.

In a situation where there is no contractual agreement, the employee must be made to understand that the lack of agreement may impact the employer’s ability to make a fully informed decision about the position.

Lack of consent will not stall the process, and a decision will be made based on available information which might not give the full picture of the employee’s situation. 

Thus it must be understood by the employee that this process of referral and examination is only designed to help them and is in their interest as well as information related to what the referral process will involve.

According to HRZone, referrals are made with the objective of:

• obtaining information when an employee is on long-term sickness; usually information related to prognosis.

• finding out if the employee’s is suffering from an underlying health condition which may be causing short-term intermittent sickness that can impact employee’s work 

• establishing whether or not the employee is fit to attend a disciplinary or performance hearing

Some of the common reasons when a manager refers an employee to Occupational health include:

• Situations where an employee has been absent from work on a number of occasions in recent weeks/months 
• Situations where an employee is absent on a long-term basis that has been over a month.
• Situations where particular patterns have been identified in an employee’s absence 
• Situations where a potential health problem has been identified and how it impacts the employee’s ability to work.
• Situation where an Occupational Health assessment is required for employee’s return
• to work

Conclusion

In this blog we discussed what happens when an Occupational health report is ignored and what can be done in such a case. 

We have also discussed what an occupational health report is and what the occupational health referral process involves. 

FAQ related to Can an employer ignore an Occupational health report?

Is Occupational Health Confidential UK?

Any information obtained by the occupational health doctor or nurse is strictly confidential and is collected with the consent of the employee involved. 

No information is divulged to any third party, including the person’s general practitioner (GP) without the person’s consent.

Do employers have to follow occupational health recommendations?

Your manager or employer can ignore the advice and suggestions given by the Occupational Health specialist in their report since it is only suggestion and advice. 

The inputs for accommodations are not mandatory, rather it is completely up to the manager or the employer whether they want to take up the advice or not. 

Can I refuse my employer access to my medical records in the UK?

Yes you can refuse to give your employer access to my medical records however, if it is needed in the case of occupational health referrals it might benefit you that you give it to them for the OH assessment. 

Can an employer override a doctor’s sick note UK?

According to Personnel Today, the Government has indicated that employers may overrule a GP’s advice in a fit note as to whether or not a person is potentially fit to return to work.

References

Disability. MS Solicitors. Retrieved on 24th March 2022. https://www.ms-solicitors.co.uk/employee/discrimination-in-the-workplace/disability-discrimination/faqs-disability/#15

Is an employer entitled to rely on Occupational Health advice about disability? Pure Employment Law. Retrieved on 24th March 2022. https://www.pureemploymentlaw.co.uk/is-an-employer-entitled-to-rely-on-occupational-health-advice-about-disability/

Seamus McGranaghan. Should advice, i.e. a reasonable adjustment provided by occupational health specialist doctors be used or can it be disregarded? Legal Island. Retrieved on 24th March 2022. https://www.legal-island.com/articles/uk/features/discussion/2018/apr/following-advice-from-OH-reasonable-adjustment/

What Power Does Occupational Health Have? WorkingWellSolutions. Retrieved on 22nd March 2022. https://workingwellsolutions.com/what-power-does-occupational-health-have/

Six best-practice tips on how to make an occupational health referral. Fusion Occupational Health. Retrieved on 24th March 2022. https://www.fusionoh.com/blog/how-to-make-occupational-health-referral

Occupational Health Referrals. Guide. University of Glasgow. Retrieved on 24th March 2022. https://www.gla.ac.uk/media/Media_554573_smxx.pdf

Questions to ask when you are submitting an Occupational Health Referral. FusionHR. Retrieved on 24th March 2022. https://www.fusionbusiness.org.uk/occupationalhealthreferral/