When referring an employee for an occupational health consultation in the UK, employers have several important legal obligations:
Consent and Transparency
The employer must inform the employee about the referral and its purpose. While consent isn’t always legally required for the referral itself (as it may be necessary for contractual or legal obligations), best practice involves explaining why the referral is being made, what information will be shared, and how the OH report will be used. Employees should understand this isn’t a disciplinary process.
Data Protection Compliance
Under UK GDPR, the employer must have a lawful basis for processing the employee’s personal data. This is typically “legitimate interests” (managing the employment relationship) or “legal obligation” (health and safety duties). When sharing information with OH, provide only relevant details – medical history should come from the employee or their GP, not from management speculation. Document what information was shared and why.
Providing Relevant Information
The employer should give the OH service appropriate context, including job description, specific concerns prompting the referral (attendance patterns, performance issues, reported symptoms), any workplace incidents, and questions they need answered. However, avoid sharing excessive personal details or speculation about medical conditions.
Equality Act 2010 Obligations
If the employee may have a disability (a physical or mental impairment with substantial long-term effects on daily activities), the employer has a duty to make reasonable adjustments. An OH referral is often part of gathering information to identify what adjustments might be needed. Failing to make appropriate referrals can lead to discrimination claims if the employer should have known about a potential disability.
Health and Safety Duties
Under the Health and Safety at Work Act 1974 and Management of Health and Safety at Work Regulations 1999, employers must assess and manage risks to employee health. OH referrals may be necessary to fulfill these duties, particularly for fitness-to-work assessments in safety-critical roles or when assessing whether someone can safely continue in their role.
Contractual Considerations
Many employment contracts include clauses requiring employees to attend OH assessments when reasonably requested. However, employers cannot force medical examinations without contractual authority or specific legal provisions (which exist for certain regulated professions). If an employee refuses, this should be managed carefully, as dismissal for refusal could be unfair if not handled properly.
Timing and Appropriateness
Referrals should be made at appropriate times – early intervention is generally better. Common trigger points include extended absence, frequent short absences, performance issues that might have health causes, following workplace accidents, or when risk assessments identify health concerns. Delayed referrals can suggest the employer hasn’t taken reasonable steps to support the employee.
Using the OH Advice
Once the report is received, employers must consider the recommendations seriously. While not legally bound to follow every suggestion, they must show they’ve genuinely considered them, particularly regarding reasonable adjustments. Ignoring OH advice without good reason can be problematic in tribunal claims.
Confidentiality After Referral
Information about the referral and any resulting report should be kept confidential, shared only with those who genuinely need to know (typically HR and the line manager). Medical records must be stored securely and separately from general personnel files.
Cost
Employers typically cannot deduct OH consultation costs from employee wages unless there’s clear contractual authority. The referral is made for the employer’s benefit to obtain advice, so the employer bears the cost.
Avoiding Discrimination
The referral itself must not be discriminatory. For example, referring only pregnant employees or those of certain ages for fitness assessments when others in similar roles aren’t referred could constitute discrimination.
The overarching principle is that OH referrals should be proportionate, transparent, and genuinely aimed at supporting the employee and managing legitimate workplace concerns – not used as a disciplinary tool or to gather ammunition for dismissal.