The ASU has recently had a number of enquiries from members being forced to attend medical examinations conducted by a medical practitioner of the employer’s choice.
Some employers have also sought more detailed information from the employee’s medical practitioner regarding the nature of the employee’s sick leave.
The particular issues raised have been different depending upon individual circumstances. They may involve an employee returning to work from an injury or from extended sick leave. They may also involve an ongoing illness whilst still undertaking their duties.
The reason behind the employers’ actions to have their own doctor examine an employee or seek further information from the employee’s doctor could be to identify whether the employee can perform their job. It may be that the employee has had extended periods of unexplained sick leave or that the employees return to work presents the employer with issues concerning occupational health and safety.
In general, the law recognises the need for employers to provide a safe workplace and as such it may be considered that the actions of the employer in seeking further medical evidence is reasonable. The employer may argue that they are seeking to minimise the potential for a workers compensation claim or that they want to be assured that the worker is not a potential health and safety risk at the workplace, in these circumstances it may be deemed that the actions of the employer are reasonable.
However, regardless of the circumstances, the employer would still need to demonstrate that there is a genuine need for their actions and that those actions are undertaken in a reasonable manner. The employer would need to recognise issues of privacy and respect the employee’s rights. Such mandatory medical examinations could make matters worse for the employer if undertaken for illegitimate reasons or if conducted in an inappropriate manner.
If you are facing such a situation there are some things to consider:
- What is the purpose of the examination? Is it to deal with issues concerning Occupational Health and Safety or your ability to perform your work? If so, the issues of concern should be clear and specific as to what the doctor should be examining and be limited to those matters. It should not be an examination where the doctor is examining other matters.
- The doctor’s report should concentrate on the specific issues that have been identified by the employer and not be some open-ended examination. Where possible you need to confirm all of this with your employer before attending any medical examination or approving any requests by your employer for further medical information from your doctor.
- If the issues are around your ability to perform your duties then any examination or information sought by your employer should go to the specific duties you perform and not be about your ability to perform a wide range of tasks beyond your normal duties.
Finally, if you feel you are unreasonably treated you have a right, under the law, to raise these issues with your employer without being penalised. The ASU understands the reality that many workers face at their jobs, and recommends that you contact the Union to discuss your potential problems.