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My contract has a clause

The Company reserves the right to require you to undergo a medical examination at its request at any stage of absence due to sickness. The company will pay the cost of any such examination and all information given in connection with the examination and any subsequent medical report, shall be fully disclosed to the Company.

Is this legal? If not does it void the contract?

This is in the UK

  • I imagine as long as it is for the purposes of a yes/no are you sick answer then probably. If its to determine if you are pregnant then probably not. – A. K. Mar 29 at 17:44
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    I don't think it voids the contract, but I think it's highly likely to be an unfair contract term. The problem is "all information" being given to the Company. This could result in private and sensitive information completely irrelevant to your job or your sick leave being given to your employer. – Owain Mar 29 at 21:10
  • I don't know about UK law. In the US the employer can require certification from a medical professional that the illness is real and prevents the employee from engaging in the ordinary duties of the job. But under HIPAA, the amount of information that could be disclosed to the employer would be quite limited, much less than "all information given in connection with the examination". – David Siegel Mar 29 at 21:24
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This looks very iffy.

  • It purports to require you to consent unconditionally to medical examination.
  • It further purports to demand unredacted medical examination irrespective of relevance.

According to http://www.acas.org.uk/media/pdf/n/9/B11_1.pdf

The Access to Medical Reports Act 1988 requires an employer to obtain written consent from a worker before applying to his or her doctor for a medical report. The Act lays down a procedure to be followed and gives workers the right to see the report, to request amendments or to withhold consent to the report being supplied.

The relevant provision is available at https://www.legislation.gov.uk/ukpga/1988/28/section/3

While there may be theoretical loopholes to this, an employer would be unwise not to follow the norms laid out above.

It would be ethically questionable for a doctor to examine without consent (where a person has that capacity); or to rely on a contract entered into some time ago under different circumstances as evidence for consent.

In practice an Occupational Health professional will almost certainly want to protect themselves professionally by establishing genuine informed consent first.

The TUC has more guidance on the complexities of this:

https://www.tuc.org.uk/research-analysis/reports/confidentiality-and-medical-records

The contract term may also be unenforceable under GDPR insofar as it is a) processing data reliant on consent which is not freely given and b) processing more sensitive data than is strictly necessary for the task.

Now just because you have the right to refuse consent doesn't mean the employer will do nothing about it.

The employer might attempt to refuse payment under an occupational sick pay scheme, to which some reasonable additional conditions may be attached, but a) so long as you notify them and get appropriate doctor's notes in the usual way (see https://www.gov.uk/statutory-sick-pay for details) your employment contract cannot invent additional conditions to prevent you receiving Statutory Sick Pay, and b) it is questionable whether submitting to a disclosure arrangement as described would be reasonable.

The employer might attempt to discipline or dismiss you for refusing to comply. The reasonableness of this is likely to depend on the existence of exceptional circumstances. There may be cases where there is a statutory duty to monitor for specific exposures which give rise to a refusal to consent being a sufficient reason for dismissal (and I do not know for certain) although the contract wording given does not lead me to expect that this is the case here.

In the absence of such a reason, any detriment might lay them open to a claim of victimisation of an employee asserting their rights. If the employer takes any such detrimental action, you would likely need to submit a grievance and be willing to pursue to Tribunal to sort it out.

If you are currently being required to submit to an examination under this term, seek advice without delay from your union representative. If you did not have the prior presence of mind to join a union, a solicitor specialising in employment law may be able to give advice (for which you should expect to pay).

Having said all that, I notice the term does not specify that the employer may insist on who does the medical examination... I do wonder if you could meet this requirement by simply visiting your own GP, who will presumably be bound by the legislation above (definitely get advice before trying to use this!).

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    Important is that GDPR doesn't require just consent, but free consent. "Consent or you don't get the job" would most likely not be free consent. – gnasher729 Mar 30 at 13:23

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