This article exposes a piece of legislation that could be abused by an educational establishment wanting to dismiss an employee in a most underhand and damaging way. All that is required is for the employer to express a concern about the employee's "health or mental or physical capacity" for employment, and to make arrangements for the employee to undergo an assessment by an occupational health advisor. Whether or not the employee has the assessment, and even if the assessment gives a clean bill of health, it is techically possible for an unscrupulous employer to terminate the employment on medical grounds anyway. The only way around it, it seems, is for the employee to pre-empt the OH assessment by providing the employer with a medical report that does not disclose grounds for termination. This would not necessarily stop a determined bully employer from dismissing anyway, but it would help the employee's case in subsequent legal proceedings.

Please note that the legislation in question was probably introduced on the presumption that it would be applied by reasonable people in rare and lamentable situations. The abuse described here should only be anticipated where it is already clear that the employer's decisions are being made by a person with no conscience, who is determined to make the employee's position untenable, and when, in such a context, the employee is told to undergo an occupational health assessment.

The Access to Medical Reports Act 1988 established a right of access by individuals to reports relating to themselves provided by medical practitioners for, among other things, employment purposes.

Section 2(1) of the Access to Medical Reports Act 1988 states that under that Act, a medical report, in the case of an individual, means a report relating to the physical or mental health of the individual prepared by a medical practitioner who is or has been responsible for the clinical care of the individual.

I know from having read memos exchanged between OH practitioners and HR departments that this definition is interpreted by some employers and occupational health practitioners as meaning that, where a report is prepared by a medical practitioner who has not been responsible for the clinical care of the individual, the individual does not have the rights of access to the report otherwise given in the 1988 Act. As such, reports are transmitted between the medical practitioner and the employer without the individual having sight of them. I hope this does not happen in all cases but I know it does happen.

Under Part 3 of the Education (Teachers' Qualifications and Health Standards) (England) Regulations 1999, Statutory Instrument 1999 No. 2166, there is a clause at section 7 which provides that:-

"... A person in relevant employment shall not continue in that employment if, having regard to any duty of the employer under Part II of the Disability Discrimination Act 1995, he does not have the health and mental and physical capacity for that employment.

where it appears to his employers that a person may no longer have the health or mental or physical capacity for his employment

they shall consider such evidence and representations and any other medical evidence available to them, including such evidence which has been furnished in confidence on the ground that it would not be in the best interests of the person concerned to see it;

In view of the way some employers and OH practitioners bypass the 1988 Act, and the context of section 7(1) of the 1999 Instrument, it is theoretically possible that, without being seen to be breaking the law, an educational establishment could purport to conclude that an employee no longer has the health or mental or physical capacity for his employment, without ever telling the employee what that concern is, and without the employee ever seeing any of the medical evidence to support the purported conclusion. This outcome could occur whether or not the employee underwent an OH examination.

If an employee asserts that he or she is being bullied, and the educational establishment then decides to submit the employee for an occupational health assessment, the employee should be extremely wary. The employer should reasonably outline (at least) the nature of their purported concern. It is true that some employees report being stressed by bullying, but others do not. If the employee is ill through stress, however, it does not follow that the employee should undergo the OH assessment. If the employee has not reported stress related (or other) illness, there is no reason for the OH assessment in the first place.

The real problem here is that the OH assessment might be reasonable, and might disclose no serious illness or even no illness at all, but the employer can, under these regulations, make decisions without showing the employee the basis of the decisions. With a sufficiently bad employer, once the employee agrees to the OH investigation, they lose control of the situation. I am not suggesting that all employers who send staff for OH assessments are scoundrels - far from it. However, where the employee is being bullied by the establishment, then it would be prudent for the employee to check these regulations carefully and be on the lookout for - and protect him or herself from - the abuse described here.

One way to minimise the potential for damage is for the employee to obtain his or her own medical assessment and report, provide it to the employer, and refuse to attend the OH assessment. It is likely that the employee-sourced report will not disclose "mental illness", but, more to the point, the employee knows what is on the report, and whether or not it discloses grounds why the employee should not continue in employment. If the report only identifies illness induced by bullying, or a disability, then that is not reasonable grounds to terminate the employment. Naturally the same is true if the report discloses no evidence of illness.

Once the employer has had this employee-sourced report, particularly one that discloses no illness or no illness that warrants dismissal, the employer has no legal basis under these regulations upon which to insist that the employee has the OH assessment, and no legal basis to exercise the perceived rights to (ultimately) terminate the employment on medical grounds.

Furthermore, if the employee does not attend the OH assessment, the employer has no grounds to purport to have obtained "medical evidence" to support a decision to terminate the emploment. The only medical evidence in its position may well be limited to that supplied by the employee, and the regulations require the employer, in such circumstances, to form a conclusion based on whatever information that is available.

If, having received a favourable employee-sourced report, the employer again insists that the employee should undergo an OH assessment, and if they support their insistence by quoting the above regulations - putting the employee under duress to comply - then the employee can reasonably inform their employer that they have not satisfied the basic legal requirement to have the concern identified in 7(2) of the regulations, and therefore it would be unlawful of them to exercise any perceived right under sections 7(2) and 7(3). This information, disclosed to the employer in good faith and in the reasonable belief that it was true, may arguably be a "protected disclosure", which means it could then be argued that any detriment or dismissal on the ground of having disclosed the information would be unlawful.

TrackBack URI for this entry

Comments (1)

Subscribe to this comment's feed

janis said:

	Intersting, what every employee of large organisations should know.
	report abuse vote down vote up

April 22, 2008
Votes: +0