Is it legal to ask employees about their medical history?4th January, 2012 by Brian Butler
I have heard that some employers are asking employees about their medical history either through a medical questionnaire or as a term of an employment contract. I am told that if employees do not agree to disclose this information they will be subject to disciplinary action. Is this legal? If so, should golf clubs follow suit?
Answer: I can understand the possible intention that employers may have if they have access to the medical reports of all employees. They may feel the need to identify the employees who are disabled so that they can anticipate the reasonable adjustments that they may require. They may also feel the need to ensure that the work employees carry out is safe and will not exacerbate any medical condition they may have.
Employees who are disabled may feel more disadvantaged by requests for medical information. Indirect disability discrimination occurs when something applies in the same way to all employees but has an effect which particularly disadvantages on disabled employees. Indirect discrimination may be justified if it can be shown to be a proportionate means of achieving a legitimate aim. The employer may feel that asking all employees about their medical history is a proportionate means of achieving a legitimate aim.
The reason why employers are not allowed to ask medical questions on application forms is to prevent discrimination. The same danger must exist after employment has started. The answer to your question is that employers can request such information but they would have to proceed with care because they run the risk of upsetting employees and if the disciplinary procedure was invoked against them legal action would surely follow.
Golf clubs should avoid these kinds of problems. If a club needs to obtain medical information it would be advised to use the Access to Medical Reports Act. This Act requires the employer to request access to the employee’s medical reports. The employee has the right to refuse this access. This strikes the right balance, employers can make such requests and employees have the right to withhold their consent.