Public and Commercial Services Union

Because of the nature of the definition of disability, medical information can form a significant part of any dispute over disability discrimination issues.

It is important to ensure that such information is accurate and as up to date as possible.

Points to remember

Employees should be told the reasons for any referral to Occupational Health advisers.

Right to acccess medical records

Employees have a legal rights, under the Access to Medical Records Act:

• To see any report prepared on them by a medical specialist who has treated them
• To identify any points that they disagree with and ask for these to be amended
• If such amendments are refused, to add a note to the report detailing their objections.

But such rights do not extend to reports prepared by the employer's occupational health advisers - though most should agree to provide the employee with a copy of their final report.

Employers must defend their decisions

The employer is the decision-maker and medical reports are there to inform their decisions. If medical evidence is conflicting, the employer must decide which opinion to prefer and should be prepared to defend their choice in a Tribunal.

Occupational health are not experts

Most occupational health advisers will not be experts in the particular medical condition or impairment that someone has - but their specialism is in occupational effects.

Employees need to co-operate

Fair employment procedures require employers to seek up-to-date medical facts but if the employee unreasonably refuses to cooperate then the employer is entitled to make decisions based on such information as they already have. In other words, employees can do their case more harm than good by refusing unreasonably to attend an Occupational Health consultation.

Employees can be accompanied

Most OH providers will not object to an employee bringing someone with them to a consultation, though any such person is not usually allowed to answer questions for the subject of the consultation.

Your right to disagree

If you intend to disagree with the conclusions of any medical report, do so immediately and provide supporting alternative medical evidence either at the time or in as short a time as possible afterwards.

Employment tribunals

Tribunals are there to judge whether the employer acted reasonably at the time and presenting more expert, alternative medical evidence only in a tribunal hearing will not necessarily make the decision that the employer took wrong, if they could not reasonably have been expected to know that information.

Only a tribunal can finally determine whether an employee is a disabled person under the DDA - employers can only make their best guess. But if they are trying to argue that someone is not a disabled person under the Act, remind them that they still have duties to treat such people fairly and health and safety legislation may require provision of alternative, more suitable equipment