Employers are being encouraged to utilise occupational health (OH) services proactively to safeguard employee health and wellbeing, managing both legal duties and sensitive personal circumstances.
The focus of this year’s Occupational Health Awareness Week, which ran from 21-27 September, highlighted the importance of OH as a component of responsible business practice. However, businesses must navigate specific pitfalls to ensure compliance and fair treatment.
Rena Magdani, a partner and head of employment, pensions and immigration at Freeths, outlined key considerations for employers seeking to manage their legal obligations and workplace needs effectively. According to Ms Magdani, decisions impacting employees must be grounded in expert medical evidence to ensure fair treatment and mitigate the risk of disability discrimination claims.
Engaging an occupational health expert is deemed essential, as they provide authoritative information and informed recommendations. For larger organisations, internal OH teams may be available. For others, Ms Magdani advises seeking counsel from external providers. The Society of Occupational Medicine, the organiser of Occupational Health Awareness Week, maintains a directory of such providers.
Relying on expert OH advice helps employers avoid making decisions based on instinct or suspicion, thereby strengthening their position should disputes arise.
The process of obtaining an OH report can be time-consuming, particularly if the OH adviser requires access to an employee’s General Practitioner (GP) records, or if scheduling meetings proves challenging. To avoid potential criticism for delays, employers are advised to take all steps within their control promptly. This includes initiating OH referrals as soon as possible and acting upon the outcomes of those referrals without undue delay.
Careful consideration should be given to the questions posed when referring an employee to occupational health. While standard referral proformas may exist, employers should assess whether these are appropriate for each specific individual’s circumstances. Ms Magdani emphasised that the referral process is a crucial opportunity to obtain clear, practical guidance on subsequent steps, making the time invested in formulating precise questions highly valuable.
A common inquiry from businesses to OH services is whether an employee meets the definition of a disabled person under the Equality Act 2010. This question is pertinent because a staff member’s disability status dictates the employer's legal obligations, such as the duty to implement reasonable adjustments.
However, employers should not automatically accept an OH opinion as the definitive determination of an employee’s disability status. Ms Magdani referenced the case of *Gallop v Newport City Council*, where the employer faced criticism for merely endorsing a medical opinion that the employee was not disabled. The tribunal in that case suggested that, instead of asking generic questions about disability, organisations should pose practical questions concerning the employee’s impairment and its functional effects. This approach enables employers to form their own informed view on whether the definition of disability is satisfied in accordance with the Act.
This guidance is mirrored by Acas, which advises that in most scenarios, it is more effective to examine how an individual’s condition or impairment affects them, rather than solely focusing on the nature of the condition itself.
Employers are also encouraged to review medical and OH reports critically and to develop their own perspectives, while acknowledging that expert advice should only be disregarded for very strong reasons. Employment tribunals generally accord significantly greater weight to an OH expert’s opinion on medical matters than to an employer’s personal views.
Given the sensitive nature of OH referrals, employers must ensure personal data is handled appropriately. Ms Magdani suggested measures such as password protecting referrals and OH reports to enhance data security.
The consequences of mishandling OH processes and employee circumstances are substantial. Defending a claim for disability discrimination carries significant risks, including the absence of a financial limit on compensation awards. Beyond financial penalties, the potential damage to an organisation’s reputation can be even more severe.
By employing occupational health services judiciously, businesses can effectively manage legal risks, provide essential support to their employees, and ultimately benefit their overall operations.
