Q&As

Where an employee declines to consent to data processing by an occupational health (OH) provider, can the OH provider continue to produce the report, relying on any exemptions, and is the employer entitled to receive the report?

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Published on LexisPSL on 17/02/2020

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Where an employee declines to consent to data processing by an occupational health (OH) provider, can the OH provider continue to produce the report, relying on any exemptions, and is the employer entitled to receive the report?
  • AMRA 1988 and doctor’s duty of confidentiality
  • Data protection

Where an employee declines to consent to data processing by an occupational health (OH) provider, can the OH provider continue to produce the report, relying on any exemptions, and is the employer entitled to receive the report?

For the purpose of this Q&A we have assumed that the employee has consented to attend a medical appointment or examination with the occupational health (OH) provider, but has refused consent to processing of their health information.

There are two main considerations when seeking a medical report on an employee:

  1. the requirement for consent from the employee under the Access to Medical Reports Act 1988 (AMRA 1988), and the duty of confidentiality held by a doctor, and

  2. the requirements for processing personal data and special category data under Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR), and the Data Protection Act 2018 (DPA 2018)

See generally:

  1. Practice Note: Medical reports—data protection issues and AMRA 1988

  2. Checklist: Obtaining a medical report during employment—checklist

  3. the following Precedents, for use in the situation where an employer wants to obtain a medical report on a current employee from its OH service, a company doctor or an independent doctor:

    1. Medical report during employment (employer’s doctor)—letter to employee requesting report

    2. Medical report during employment (employer’s doctor)—employee consent form

    3. Medical report during employment (employer’s doctor)—application for report

AMRA 1988 and doctor’s duty of confidentiality

AMRA 1988 applies in

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