Within an organisation, OH professionals will liaise with managers and HR within the bounds of patient confidentiality. Managers can approach OH to discuss concerns and issues, although discussions about an individual employee’s health should be restricted to issues relevant to their fitness to work. Managers should be aware that any conversations they have with OH might be noted in the OH records. It’s inappropriate for managers to have ‘off the record’ discussions about an employee’s health. Any formal referrals by an employee's manager to OH should be made with the individual’s informed consent with open and full disclosure of the reason.
There are both legal and ethical issues on maintaining the of employee health confidentiality information. Registered healthcare professionals are required by their regulatory bodies to preserve medical confidentiality and only reveal health information to third parties with the individual’s informed consent. The exception to this is by court order or ‘disclosure in the public interest’ where the individual has refused consent to disclose information and there’s a genuine risk to the safety of others.
Employee health records must be kept separate from personnel records and should only be accessed by qualified health professionals. It’s inappropriate for HR and line managers to have access to employee health records, and information about an employee’s health should only be disclosed to them with the individual’s express and informed consent. It may often be in the best interests of the individual for information to be disclosed, for example, to be able to make a ‘reasonable adjustment’ to help overcome the occupational effects of a disability, but their consent is crucial.
An employer or manager will sometimes request OH to assess an employee’s fitness for work and produce a report. An employee must consent to the assessment and also to the sending of the report. However, if the employee refuses consent, then the employer or manager is entitled to make a management decision without it.
There are occasions where OH or HR require a medical report from an employee’s GP or treating physician (such as a consultant psychiatrist or orthopaedic surgeon). Only relevant information should be requested (not the whole GP/medical record) and again the employee must consent. The Access to Medical Reports Act 1988 (AMR) applies to such reports and has specific rules about consent. OH reports are covered by similar duties of confidentiality and consent under professional codes of practice and data protection law with associated guidance from the Information Commissioner.
Pre-employment health enquiries
An employer may wish to ask about the health and fitness for work of a job applicant using a pre-employment or pre-placement health questionnaire. Once again, the employer and an OH service carrying out the assessment must ensure compliance with medical confidentiality, data protection law and, importantly, the Equality Act 2010.
Under the Equality Act, questions concerning the health of job applicants should not be asked until a job offer is made which could depend on successful health clearance.
The health assessment should be fit for purpose and only ask for information relevant to the job. For example, for low-risk clerical jobs a simple health declaration may be appropriate. A more extensive health questionnaire (or even medical examination) should in general only be needed where there are specific health requirements – such as safety-critical work, healthcare and food preparation.
Health questionnaires should be designed and interpreted by OH professionals. Non-healthcare managers (including health and safety practitioners) should not be involved in the interpretation or even the initial screening of pre-employment health assessments. Many commercial OH providers will be qualified to undertake such assessments if there is no in-house resource, and the work can readily be outsourced to them.
