Sickness Absence Documents

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Topic: Sickness Absence Documents

medical examinations clause
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Medical examinations clause

Medical examinations clause

Even with the contractual power to do so, you can't force an employee to undergo a medical examination. To do so would amount to a breach of their privacy and, if the doctor doesn't have the patient's consent, a civil trespass and a criminal assault. However, there are still benefits to having a medical examinations clause.

Disciplinary offence

You can't force an employee to be examined by a doctor, whether it's their own GP or an independent doctor you appoint. So, does this mean a Medical Examinations Clause isn't worth the paper it's written on? No, because where there is a contractual clause authorising you to require the employee to attend a medical examination, a refusal by them to comply with your reasonable request, without good reason, can amount to a disciplinary offence justifying a formal disciplinary warning. In effect, the employee will have committed a breach of contract. In addition, the employee might not realise they are still entitled to refuse to be examined, so they are probably more likely to go along with it if there's a clause in their contract along the lines of ours.

Future employment

If your employee refuses to comply with your reasonable request for a medical examination (and usually you will request this either where the employee is on long-term sick absence or they have a short-term, regular absenteeism problem where there is an actual or suspected underlying medical condition), it means you will be entitled to base any subsequent decision on the future of their employment on the relevant facts available, without the benefit of expert medical evidence. The employee should be made aware that this is probably not in their best interests!

Data protection

If the employee does agree to have a medical examination, be aware that any report produced and sent to you will constitute special category personal data under the General Data Protection Regulation (GDPR) because it contains personal data concerning the employee’s physical or mental health, and so you will need an additional lawful ground or condition for processing the data, e.g. the processing is necessary for the purposes of carrying out your obligations or exercising your rights under employment law. It must also be in accordance with your data protection policy, or another appropriate policy you have in place, which explains both your procedures for securing compliance with the GDPR data protection principles in connection with the processing of such special category personal data and your policies as regards the retention and erasure of such personal data.

 

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