Can medical and absence information be requested before offering employment?Posted in : Seamus Says - Employment Law Discussion on 5 January 2018 Issues covered:
Q "Can I insist that a medical and absence information is received prior to making an offer of employment? I can make an offer dependent on receiving satisfactory references. Can I do the same in relation to absence records or someone undergoing a medical examination or sending me records from their doctor?"
Keywords: Medical and Absence Records; Justification
Seamus: This is an interesting question, certainly. Sometimes employers that have maybe had issues arising in the past from recruitment, they might start wandering towards what we need to get with pre-employment medicals and things like that. I think the employer does need to be careful in terms of these circumstances. If there is going to be a request for a pre-employment medical, I think that it should be appropriate. The job should be necessary. I can imagine someone that has to have a certain level of fitness in the likes of the firefighting services or ambulance workers.
Scott: Sport clubs, all that kind of stuff.
Seamus: Yeah. There's a requirement for a pre-medical and the employer has to be satisfied that they're fit to be able to do the role. If it was a simple, straightforward role, desk job, I would struggle a wee bit with wanting to know why a medical is necessary. So, it's all about the justification of that.
Scott: What about something that you've got the justification, but what about just absence records? I want to make sure that Seamus McGranaghan hasn't been off three out of the last nine months. I'm not going to offer you a job or if I do offer you a job, it's going to be dependent on me seeing those records. Is that fair enough?
Seamus: Certainly. You might put out a general request as an employer for a reference. You might get some information back that deals with the absence because maybe the previous employer has been happy with it. You need to be very careful with that from a discrimination point of view.
If you send someone off for a medical or ask for details about their prior absences, there could have been disability involved, whereby reasonable adjustments have been put in place by the prior employer. Or there could have been some dependency issues in terms of if they had a sick child or a parent to look after. You don't want to get into a position where you are reading absence records deciding that the person has a bad track record here. We no longer want to hire them.
The start of this question, I think, asked about insisting on the medical and absence records in advance of making the offer. I would normally say the offer is made first and it's made subject to satisfactory references or medicals or things like that. I think that as an employee, you need to be very careful about asking for absence records. I could potentially see a lot of issues arising.
The other thing about medical records is that if you have a female and you get a medical and the medical comes back to identify the female has been pregnant and all of a sudden then they should withdraw all of an offer of employment, then are we looking at...
Scott: Automatic discrimination.
Seamus: Absolutely. I think a lot of thought has to go into why do we want the medical, are we justified in getting it? Around absence records, I would be advising to take a very cautious approach with that. The employee might not be satisfied or happy with you making such a request on the basis of their data protection.
Scott: You might lose your best employee.
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