Instructing occupational health

Occupational health – background

Occupational health is a professional’s focus on the wellbeing of employees in the workplace. They will assess an employee’s health in that context, typically in a written report that provides practical guidance for an employer on the adjustments and treatments that may support an employee’s performance at work or return to work.

The need to instruct occupational health becomes apparent when an employee is suffering from a mental or physical condition which impacts the employee’s day-to-day activities. The employer may identify an issue, or an employee may raise their own concerns. In practice, occupational health is often engaged when an employee is on long-term sickness absence to help their employer understand the prospects of a return to work. The Occupational Health specialist should advise on the likelihood of the employee returning to work, by when, and whether the employer needs to consider any changes to working conditions to facilitate their return (including possibly a phased return to work). Occupational Health can also be engaged where an employee is continuing to work but faces challenges due to a mental or physical condition and the employer wishes to identify the cause of the underlying issues and how they can support the employee to improve their performance.

Before engaging occupational health, employers should explain the reasons for the referral and seek the consent of the employee, particularly given an employer’s data protection obligations under the UK GDPR. They may also have to consider the Access to Medical Reports Act, if the occupational health provider has had some responsibility for the employee’s care. This will encourage employees to cooperate with the occupational health provider and minimise suspicion that a dismissal is pre-determined. If an employee unreasonably refuses to engage with occupational health, this could be grounds for disciplinary action against the employee because they are failing to comply with a reasonable instruction – although disciplinary action at an early stage would typically be viewed as unnecessarily aggressive.

Instructing occupational health

Once the referral to occupational health has been made, the specialist will conduct their assessment and produce a report which will include recommendations for any adjustments that would aid the employee’s health or performance in the workplace. The report is shared with the employee before it is shared with the employer, and the employee’s consent is sought by the occupational health professional before the employer can view the report. Typically, the occupational health professional should ask the following questions of the employee at the assessment:

• What medical conditions or symptoms do you have?
• Do you have a disability that could affect your work? This includes any mental health conditions.
• Are you taking any medication?
• Do you have any previous history of health conditions?
• What are the physical and mental requirements of your work?
• Please describe your working conditions and patterns.
• Do you find any particular aspects of your job difficult? If yes, why?

These are the key questions that an employer should expect an occupational health specialist to ask an employee in order to produce a comprehensive report which will allow the employer to consider whether a health problem might be impacting the employee’s work.

Once an employer receives the report, it is important that they consider and implement the recommendations made, particularly if the report identifies that the employee may have a condition that amounts to a disability under the Equality Act 2010. In such cases, an employer may wish to engage a medical specialist to further assess the employee’s health in order to form a view on whether the condition is indeed a disability.

If any adjustments to working conditions are made, an employer should generally keep them under regular review in case additional adjustments need to be made for an evolving health condition. It is important that employers meet with the employee to discuss the findings and recommendations in the report before they implement any adjustments, to ensure that the employee agrees with those adjustments and to provide them with an opportunity to suggest alternatives.

Employers should use occupational health to proactively demonstrate that they take their health and safety obligations (and anti-discrimination obligations) seriously.

In summary, occupational health can be very useful in assisting employers with assessing the health condition of employees in relation to the workplace. Their engagement at an early stage is important in ensuring the employer has available to it all the necessary information about the health condition which will enable the employer to feel confident in taking the necessary next steps to manage the employment relationship or to manage legal proceedings should that prove necessary.

Authored by Ed Bowyer, Stefan Martin, Jo Broadbent, and Imtiyaz Chowdhury.