My daughter's employers want to write to her GP because of excessive sick leave. She has been diagnosed with Bi Polar previously. They want to ask if she definitely does have the condition, what medication she is on, can they do anything I.e. Reasonable adjustments, can she do anything, the prognosis. Her question is can they do this? She is annoyed that they don't believe her and she feels this is an infringement of her rights.

Many thanks for any replies.

They can ask the GP but he can not give any info out without your daughters permission!

My daughter's employers want to write to her GP because of excessive sick leave. She has been diagnosed with Bi Polar previously. They want to ask if she definitely does have the condition, what medication she is on, can they do anything I.e. Reasonable adjustments, can she do anything, the prognosis. Her question is can they do this? She is annoyed that they don't believe her and she feels this is an infringement of her rights.

Many thanks for any replies.

Yes this is standard procedure in many companies and is for the protection of both employee and employer. Anyone with a diagnosed medical condition known to an employer has a certain amount of employment protection e.g disability discrimination act.

If your Daughter refuses to comply with this, then i would expect that she would break her employment contract terms and her employer could use this to terminate her employment.

Explain to your daughter that it is in her interest to allow this, to protect her rights and allow her employers to do as much as possible to maintain good working conditions. The employer is not trying to do anything underhand against your Daughter, but is simply following good employment practice.

Your daughter is entitled to see the letter before it goes to the employer. If there is anything she isn't happy with, then she has the chance to discuss it with her GP.

HB

Yes this is standard procedure in many companies and is for the protection of both employee and employer. Anyone with a diagnosed medical condition known to an employer has a certain amount of employment protection e.g disability discrimination act.

 

If your Daughter refuses to comply with this, then i would expect that she would break her employment contract terms and her employer could use this to terminate her employment.

 

Explain to your daughter that it is in her interest to allow this, to protect her rights and allow her employers to do as much as possible to maintain good working conditions. The employer is not trying to do anything underhand against your Daughter, but is simply following good employment practice.

Whilst I agree that it is in your daughters best interests to agree to this request, I want to be clear that:

(a) if the employer terminated her employment purely on the basis that she refused, this would NOT be a breach of contract and she could not be dismissed simply for refusing access - her medical records are protected in law, and she cannot be forced to disclose them to anyone, and it would be impossible to have a contractual term that contravened her legal rights (with the exception of one or two very specific types of employment which require health screening).

(b) The Disability Discrimination Act has not existed since it was repealed in 2010. The relevant legislation is now the Equality Act 2010.

This request is not about believing her. It is normal practice. She needs to get some perspective on this. Her employer pays her to be at work, not to be off sick. As you say, her sick leave is excessive. So the employer wants to determine whether there is anything they can do to support her to stay in work. Their alternative is to dismiss her. Provided they follow a legally fair procedure, dismissing someone for excessive sick leave is permitted.

I have to assume that she wants to try to maintain her employment? If that is the case, then she needs to co-operate. Failure to co-operate would count heavily against her in relation to what the employer may be able to do to support her, or any potential tribunal proceedings in the event of discrimination. Think of it this way - she is annoyed that she sees this as her employer not believing her; what is the employer to think if she refuses to let them check her doctors opinion? In their shoes, wouldn't you then wonder if you were being spun a line?

On the other hand, if this is a make or break situation for her, and she doesn't want this to happen, then her choices are to wait until she is dismissed, or resign now and get it over with. And she would need to carefully consider what impact dragging this out would have on her mental state - a dismissal would involve hearings, and she would have to be questioned about her health and her employment intentions. Being dismissed is stressful, even if the employer tries hard to be nice about it, and that kind of stress is not helpful for someone with her conditions, as I am sure she knows.

As Honeybee has said, she does have the right to see what the GP has said before it is sent to the employer. And she should. But, realistically, the GP is going to answer truthfully and in her best interests as their patient. The more transparent the answer is, the more chance there is that the employer may be able to find something they can help with. It's not guaranteed - but it is a better position than she is in now. Because whether she realises this or not, she is already in the process that could lead to dismissal - employers don't start asking for medical letters for the fun of it. And it is nothing personal either - there will be a policy and a process, and they will follow it whether the person has bi-polar, an amputation or a lot of flu. Every single person gets the same treatment.

Now what would be useful is if we could know more about the amount of sickness she has had, whether the employer has made any adjustments already, and what the employers sickness policy is (and if she doesn't know this already, she needs to find out). Also, what kind of employer are we talking about, and how large? Is there occupational health support and has she been to occupational health? What may or may not be possible depends on all these factors, and some employers are better than others at trying hard to avoid dismissal. If we can find out more about these things we may be able to advise on a strategy to manage this - assuming she wants to keep her job, of course. And if she feels up to sharing the information, it would also be useful to know why she has had the sick leave - that is, not just that she has bi polar condition, but what actually prevents her attending work because of it. After all, she is also fit for work on other occasions, and many people manage work and bi polar conditions - so what is the actual situation that she is struggling with? That may open up possibilities of working patterns or styles.

Does her employer not utilise the services of an Occupational health service provider??

She is on dodgy ground if she refuses to allow her employer reasonable access to her GP records with her current condition. She may face an issue where she will be made redundant on capability with excessive sick absence. Asking for that GP report will be seen as a reasonable request

Management have a legal responsibility for her welfare when at work and those not in the employ of the business when at work

Thanks to everyone for replies I will try and find out more about the amount and reason for sickness.

It's true that failing to provide consent could be a breach of contract if she has such a clause in her contract or employment - I always include them.

It's also true that if she refuses to consent, it's more likely she will be dismissed - firstly, because of the (potential) breach of contract and secondly, because the employer is entitled to use the evidence it has available to it to decide whether to dismiss. If there's no medical evidence, that won't help her case!

Interesting Becky2585 and can you confirm?

"Such a clause in her contract or employment - I always include them".

You cannot have a contractual obligation that will contravene statute.

That statute being The Data Protection Act 1998, Access to Medical Records Act

So my question is how can that be an implied term in a contract of emplyment. How can an employer make it a contractual obligation for impled consent to those medical records??

Asking for my own education as this is a new one on me

The clause is usually worded along the lines of "you agree to consent to a medical examination at our request. Any fees associated with such an examination shall be payable by the company".

So no - it doesn't override statute, but it does give rise to a breach of contract and a more compelling case for dismissal if the employee refuses, as the clause doesn't say "you WILL consent" - it says "you agree to consent". These clauses are very common and the bulk of contracts that I see have them included somewhere.

It works because the clause doesn't operate to FORCE the employee to consent or attempt to override statute - it operates to give the employer a stronger case for dismissal if they don't. And if such a contract is signed or worked under for a prolonged period then it's express consent, rather than implied consent.

The statutory right to refuse kicks in when the consent form is sent to the employee and they refuse to allow access.

The clause is usually worded along the lines of "you agree to consent to a medical examination at our request. Any fees associated with such an examination shall be payable by the company".

 

So no - it doesn't override statute, but it does give rise to a breach of contract and a more compelling case for dismissal if the employee refuses, as the clause doesn't say "you WILL consent" - it says "you agree to consent". These clauses are very common and the bulk of contracts that I see have them included somewhere.

 

It works because the clause doesn't operate to FORCE the employee to consent or attempt to override statute - it operates to give the employer a stronger case for dismissal if they don't. And if such a contract is signed or worked under for a prolonged period then it's express consent, rather than implied consent.

 

The statutory right to refuse kicks in when the consent form is sent to the employee and they refuse to allow access.

From what i have seen, the employment contract will have such clauses and may point to an employee handbook which has a section regarding sickness absence. It will make it clear that there is a relationship between employer/employee where they work together with consent to obtain conditions where absence is kept to as minimal level as possible, with any reasonable adjustments made to assist.

If they don't consent to a GP confirming any long term medical issue, unless there is other medical information on the employees file, the contractural relationship has broken down and any disciplinary process will take place without the GP's information. This will be very unhelpful to the employee and they may end up going through a dismissal process for absence which could have been avoided.

In larger organmisations the OH doctor will see the medical files and tell the employer what they need to know. Many companies will hire theservices of an OH specialist who may then either ask for the ntes or see the employee themselves.

Most employment contracts that have a medical examination clause have it so the person is examined as being fit to take up the position. Suddenly demadning such things on someone who has been there for a while isnt a fair clause in a contract. However dismissal on capability grounds is allowed the employee is stuck between 2 positions neither of which are beneficial but I would suggest that she takes them at their word that they want to see if this is a long term problem and they want to try and accomodate her illness. Speaking to the doctor to ensure that the information given is strictly relevant to her employemnt matters and that she gets to see the letter before it is sent would be sensible

Most employment contracts that have a medical examination clause have it so the person is examined as being fit to take up the position. Suddenly demadning such things on someone who has been there for a while isnt a fair clause in a contract.

Sorry, but that simply isn't true!

It's settled law that the onus is on the employer to seek medical evidence on an employees condition in sickness absence dismissal cases, which is why employers should reserve the right to request evidence in the contract (with supporting information being contained in the handbook as a PP helpfully suggested).

There really isn't anything unusual about this situation - it's completely standard practice. And in my experience a GP is often more helpful than OH, as OH would need to request GP records to provide a meaningful opinion. Going to the GP direct is often cheaper and more efficient.

 

It's settled law that the onus is on the employer to seek medical evidence on an employees condition in sickness absence dismissal cases, which is why employers should reserve the right to request evidence in the contract (with supporting information being contained in the handbook as a PP helpfully suggested).

 

There really isn't anything unusual about this situation - it's completely standard practice. And in my experience a GP is often more helpful than OH, as OH would need to request GP records to provide a meaningful opinion. Going to the GP direct is often cheaper and more efficient.

I agree that such a clause as you describe may be common in some sectors - but it still isn't all that common; and it still does not justify a dismissal based on the refusal, which was what was said. It may, as you say, contribute towards a fair dismissal on the grounds of sickness, but simply refusing would not be grounds to terminate in itself, as refusal to comply is still a legal right. So you would not be sacked for refusing to give access to medical records.

It's worth remembering that an adjustment for disability needs to be reasonable. Anyone could argue that an extra day's sick leave is reasonable when the employee won't engage in the employers attempts to establish what reasonable is. The employer doesn't know how the condition affects the employee without some sort of professional advice and guidance.

OP, your daughter needs to be reasonable in this process too in order to get the most acceptable outcome.

Hi, again thanks for all replies. Daughter is having a consultation with GP next month to discuss, (first date available) she is prepared to be reasonable. The company is quite small there does not seem to be Occupational Health (she has never been offered this), she is going to look into the sickness policy which of course she needs to be familiar with. She doesn't really know the figures of her absence but agrees that 'excessive' sums it up certainly some absence every month. The absence is not always to do with mental health she suffers with stomach problems. GP is supportive and is going to answer the questions asked.