Most Occupational Health (OH) practitioners feel their heart sink when the employer or manager requests a report from the GP or has written independently to the GP. This does not always lead to an easy or productive outcome in many cases, for a number of reasons.
Employers aren’t required to continue to employ individuals who aren’t meeting their contractual obligations of performance (as set by the employment agreement and under the Employment Rights Act 1996), which includes sickness absence. In circumstances of frequent short-term, long-term, and health-related performance issues, they are required to speak to the employee and investigate the medical issues (CIPD), before making a decision. These investigations could include obtaining a GP or OH report to help answer crucial questions such as an understanding of timeframes for which the person’s health will impact their ability to meet their contractual employment obligations (CIPD) and whether the individual would benefit from reasonable adjustments if they possibly have a disability (ACAS).
It sounds simple but it isn’t! Employers have to consider timeframes and possible adjustments. Taking into consideration the impact on the organisation, costs, other employees, any precedence, other areas of the business, etc. Unfair disability dismissals are common reasons a employee can take their employer to a tribunal. Employers need to ensure dismissals are fair and avoid a tribunal where possible.
Some employers feel they need to ask for a GP and an OH report or ask OH to write to the GP specialist when gathering evidence. This is not always necessary and can as it can muddy the waters despite this being suggested by CIPD, ACAS, and the Government.
Let me explain why…
- First and foremost, the GP is the employee’s advocate. They owe allegiance to their patient. As a GP once said to me “if my patient tells me they cannot work, then I have to take this on face value”.
- GP’s may have limited understanding of how health can affect work and work can affect health. After all, this is not their area of expertise.
- GP’s may not understand the patient’s workplace or the employee’s role.
- GP’s have around seven minutes for patient assessment and can provide repeat fit notes without further evaluation. With the current COVID situation, obtaining appointments can be difficult in some areas (BMA). Fit notes are often provided with little understanding of the impact on employment, and GP reports follow a similar vein.
So what do employers need to do?
Employers need to meet their duty as part of the Employment Rights Act by gathering health-related evidence to make a decision based on their knowledge of what is reasonable. Therefore, they ask common questions such as illness timescales, prognosis, likely recurrence, whether the person is likely to be considered disabled and what support or adjustments could be suggested. They may ask whether work is contributing to ill health and a number of other questions. To answer these questions, unlike the GP, OH professionals have specialist knowledge of: –
- the workplace
- the risks within a particular role
- the benefits of work
- understanding of health conditions including interventions and primary care
- the biopsychosocial model of health and understand the impact of biological, psychological, and social factors on the ability to work
- the functionality of the individual matched to the role i.e., what they can and cannot do
- what treatment may be helpful, supporting early intervention
- adjustments and support
- Legal requirements e.g., specific Health & Safety legislation, the Equality Act 2010; The Data Protection act 2018, and Access to Medical reports 1988
As you can already see with the comparison between a GP and an OH practitioner, we are better able to match the individual with the workplace and answer the questions based on an assessment of the employee.
But why else are we reluctant to request a GP report?
- Sometimes an employee hasn’t been assessed by their GP recently and they won’t have an up-to-date view of their patient
- They can take so long to obtain and can date quickly.
- The information the GP provides is often not very helpful.
- Consent needs to be obtained from the employee (AMRA 1988). GDPR stipulates transparency when dealing with special data and therefore this requires us to explain exactly why the information is required. If this is because of an employer request and not our own, this can be more difficult.
- We have to ask specific questions of the GP. Again, more difficult when the questions are not ours but the managers. Questions have to be justified to the individual as they need to be aware of what is asked of them in informing the GP/specialist (DPA 2010).
- If the individual has provided a consistent and thorough history, asking the GP to verify it could possibly lead to a strained relationship between employer and employee.
Employers won’t always be comfortable with us taking the word of employees about their health.
When we assess an individual we utilise our active listening skills. We use verbal and visual observation skills, and marry the history with what would be expected clinically. We check consistency, use validated assessment tools, and judge the evidence. We utilise numerous sources of evidence to ensure the assessment is robust and relates specifically to that person’s job.
When assessing the employee and providing a report, we answer all the questions asked of us to the best of our ability and justify that answer. A GP or a specialist report may not be needed to answer these questions unless the employee is vague, a poor historian or they have a safety-critical role. In these cases, we are unable to rely on their account and may need to obtain “further medical evidence “or FME to ensure the answers we provide are robust and defensible. There are several ways of obtaining this of which a GP or report is one: –
- Most employees now have access to their medical records online such as with the NHS App or via their GP surgery. Additionally, specialist services use apps such as patient view or Patient knows best, allowing the employee to obtain information such as medication lists, investigation outcomes. They can be useful to build a picture of the person’s health and prognosis.
- Prescription lists are useful in understanding the condition and management.
- Individuals can access the specialists letter, shared with the GP. This can help to understand treatment considerations.
- Many clinicians seek verbal consent to seek information from primary care practitioners. Discussions with specialist practitioner nurses, practice nurses, and also treating clinicians such as community psychiatric nurses (CPNs), Occupational Therapists, Physiotherapists, etc can assist in understanding the current situation and future treatment considerations. I had a particularly successful case of a young man with diabetes type 1 who needed to work night shifts. The Specialist diabetes nurse worked closely with me to support this chap to remain in work, with the alternative being a capability dismissal.
- If the role is safety-critical (driving, working at heights, etc.) then the individual can obtain the evidence themselves from the GP or specialist or even provide evidence from the DVLA. Most GP’s and specialists oblige with the outcome of cardiology tests etc. when they understand the need related to enabling the individual to return back to work. Individuals are entitled to copies of results and it is far quicker if they obtain the information than if we or their employer request it.
- The OH service may have access to specialist assessments for example Control and Restraint assessment (PMVA), Functional Capacity Evaluations, or Workplace assessments usually undertaken by a Musculoskeletal (MSK) specialist or Occupational Therapists (OT). Psychotherapy or psychological assessments, neurodiverse assessments are other independent assessments, all of which build the medical evidence of fitness and capability.
The OH practitioner may need further medical evidence because they don’t understand the impact on the individual or the prognosis. To give some case examples:
- A gentleman with a spinal cord implant (a pain management tool) declines to use a work vehicle with electric seats. He feels it will interfere with the electromagnetic field of the implant. As there were no longer any manually adjusted seats, there was a risk of job loss. The manufacturer was contacted by the OH practitioner and the gentleman was reassured.
- A young man with nocturnal seizures providing a vague history and therefore unable to undertake his safety-critical role. With capability dismissal looming he agreed to OH obtaining a GP report which advised that cannabis use was the trigger for his seizures. The drug and alcohol policy was enforced and the young man became both cannabis and seizure-free and therefore retained his role.
Some occasions requires an in-depth understanding of the clinical situation, therefore obtaining a specialist report is essential. The OH practitioner’s skill is knowing when and what further medical evidence is required. This may require escalating to a senior or discussing the case with a peer. After all, two heads are always better than one when a case is less than clear and/or there is a safety-critical element. OH physicians always need a GP specialist report when considering Ill Health Retirement.
There are many case law scenarios supporting OH outcomes as opposed to GP’s when comparing employee access to evidence. Although the decision often depends on the organisation’s sickness or attendance policy, OH is seen as independent and more likely to provide practical and pragmatic advice. Tribunals themselves hold that an OH report can be relied on by an employer, “even if it contradicts other medical reports unless it is clearly unreliable” such as when it is not evidence-based or there has been no assessment (examination or interview) of the employee. Diana Kloss 2007.
My opinion is that the decision on whether further medical evidence is required should lie with OH practitioners, where an employer has access to an OH Service. There are many considerations that need to be carefully thought out. For small to medium organisations, platforms such as Simply People can assist businesses to source a provider.
Clinical Director PAM Group