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Posted By Jason McQueen
We currently have a situation at work whereby a number of employees are refusing to undertake various elements of statutory screening for various (non medical) reasons.
HR feel unconfortable disciplining anyone who refuses to undertake the screening and would prefer to offer them a documented 'opt out' which states that they have refused screening.
My argument is that the company has a legal requirement to conduct this screening and the employee has a legal duty to cooperate with the employer on steps taken to meet the companys legal requirements for health and safety, in this case screening, and therefore shouldnt be able to 'opt out'.
In reality, all that will happen is that if someone is aware that they have an existing condition, the will most likely try to avoid the screening due to fear (rightly or wrongly) of possibly losing their job on ill health grounds or it hindering their development within the company. Obviously those with issues are the people that the screening program needs to try and identify.
Would just like to know what members think and what they have done in similar situations.
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Posted By Melanie Fellows
Specifically what statutory screenings are they refusing to undertake? (& for what reason?)
And is it something new that's been introduced, or is it a part of their contract? (Could be HR issue)
Mel
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Posted By Paul Devlin
Interesting one, however it would be hard to truly enter debate or indeed answer without knowing what the "legal requirements" imposed on your company are and indeed in what field you operate in?
As far as I'm aware there are no statutory requirements for medical screening mentioned in H&S legislation? I stand corrected if I am wrong.
This doesnt take away from the companies policy though and if as part of your H&S within the workplace it is part of a persons conditions of employment then they are obliged to have the tests done. If its purely voluntary then its obviously there choice not to have them done.
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Posted By Jason McQueen
Morning Mel. The screening program is new as the company prior to this had been struggling to meet its statutory requirements and isnt tied to one particular aspect e.g. audiometry or respiratory.
The reasons for refusal have not been based on any (what i would consider) valid arguments. Its the general 'im not willing to do that' or 'I cant be bothered with all this'. If someone had valid arguments (such as concerns over confidentiality) then this would at least allow us to pursue the problem to a resolution.
However even the employees union rep is trying to argue that the screening should be done on a voluntary basis.
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Posted By Jason McQueen
Hi Paul, when i say health screening i cover the general topic of health surveillance required by various articles of statute. E.g. providing audiometry testing for employees working in mandatory hearing protection zones.
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Posted By Paul Devlin
Thank you that makes it clearer.
My opinion though is in your response to Mel it is a voluntary set up and as such you will find it hard to enforce it if at all.
I can understand you trying to alleviate peoples concerns etc but there will always be people who if they can will point blank refuse.
It would be better to engage the union and employees and make it a part of terms and conditions for mandatory testing but this may well take some time to introduce.
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Posted By Melanie Fellows
Hmm, can't say I've ever had to deal with this kind of situation, but I'm willing to give my opinion...
Sounds like this one needs to be a blend of HR, H&S and the union - the requirements and reasons need explaining and hopefully a contract amendment can be made.
As for losing their job over health grounds? No, no, no. It sounds like your people don't understand what you are trying to do - they need reassurances that for if example, their hearing is impaired they won't lose their jobs.
Communication is key!
And as for 'can't be bothered with all this' what? - they can't be bothered to have paid time away from work to take non-invasive tests - my boys love it and would opt to go every week if they could!!!
Not wishing to highlight a negative area, but some people (in the minority hopefully) see pound signs when offered testing (because they see the chance of a claim).
Mel
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Posted By M J Matthews
HI
When it comes to screening, this should be introduced at the pre-employment medical for specifics e.g HAV and Audio metric, then continuing health surveillance such as HAV Regulations 2005 Specific Reg 7.
As a company we need to ensure we carry out our legal obligations and if employees make this difficult HR should ensure that the disciplinary route is investigated and invoked as required.
Should future claims arise the legal rep for the claimant will love the fact that we have not followed the regulations and cases will be undefended and claims will paid.
Regards
Mick
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Posted By Tabs
Astonishing.
I would ask the union rep to raise this with his/her National Board and ask them if they think their members should refuse to cooperate with legislation specifically introduced to the benefit of themselves. In writing.
I would ask the HR Director to write to confirm that they are happy to expose the company to prosecution for failure to comply with H&S legislation, and to increase the risk of permanent injury to individuals on the payroll - regardless of "acceptance" (?!)
This is not a trivial issue and should not be made such just because it raises a little conflict. Suggest some people try conflict management training perhaps?
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Posted By Kieran J Duignan
Jason
To the extent that what you wish to introduce involves a change of culture, inertia is an understandable response.
Roots of inerta are varied and differ amongst individuals especially amongst age groups; in relation to health, there may also be different attitudes detectable in relation to gender, race, disability and other factors.
Pro-active management of changes arising from differences in beliefs and values is likely to generate the converstions that influence all but the neanderthal men, thereby scorching the ground for a legally valid claim any of them might be inclined to make.
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Posted By Clare Gabriel
This is very close to my own heart and we have had a number of refusals for our own health surveillance. As a previous correspondent has identified it was mainly down to ignorance - some of the chaps were worried they would have to undertake the cough test....SERIOUSLY!!! But others were worried about blood being taken, secret drug testing etc. The turnaround for us came when we went to each area with a HR,Union and Safety rep - all stood together and explained exactly what would be done - we have now had not a single refusal - from over 20 in the first round. Even the refusals have taken part!!! Slowly slowly!!! Now we are looking to do health promotion such as cholesterol and blood pressure they now think it is great!!!!
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Posted By Jason McQueen
Sorry for bringing this back up again but I havent had the chance to post for the last day or so.
The Union suggests that the screening program is voluntary as they (or rather their officer)feels that its an infringement on their members rights to HAVE to under go screening.
All this aside, my concern is where does this leave the company legally. we have a statutory duty to provide testing and by allowing employees to opt we are not meeting that duty.
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Posted By Kieran J Duignan
Jason
I understand you wonder where you and your company stand legally when a trade union officer 'feels that its an infringement on their members rights' to be safeguarded in the manner you judge necessary.
On the basis of the information you provide, you stand obstructed in fulfilment of your legal obligation and with an interesting problem to resolve that starts with the motivation of the trade union officer and his/her organisation.
Negotiating adaptively may lead to a mutally-agreeable resolution to the extent that you establish their motivation and are in a position to respond to those factors resourcefully. Alternatively, it may leave you with evidence to present relatively coercive options to senior management.
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Posted By Martyn Hendrie
In response to Paul's comment about screening as a specific legal requirement.
There are specific requirements in law for screening, usually where there is a need for specific accreditation or licencing of either the employer or the worker. (Asbestos workers; commercial divers; compressed air tunnellers; those who work with ionising radiation, etc.)
Like Paul, I don't believe that there is a "strict" legal requirement anywhere else. The Management Regulations talk about appropriate "Health Surveillance" but then the need is based on an assessment of risk and the usefulness of the surveillance in curing or preventing further injury.
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Posted By Clare Gabriel
Section 7 of HSWA requires employees to respond to a reasonable request made by the employer.
When we were having difficulties we actually referred the matter to our Company lawyer and they told us - in writing....that providing that the health surveillance was commensurate to the risks the employees were exposed to in the work place - for example not excessive or intrusive - so for example taking blood for no reason as oppose to taking urine when working with heavy metals - then it could be seen as obstruction and the employee could be sanctioned by the Company disciplinary process.
Gladly we never had to go through that - as it was identified that we had just not done enough to educate our employees what was required. One other sticking point was the pre medical questionnaire - we had a couple that could not read and were embarrassed so we just removed the need to fill it in before and got the nurse to do it with the employee.
With the right approach you will get through this -it is just a bit frustrating - and you will always get the odd one who WONT do it as it is a management request - are you then going to insitgate the discipline process- but again make very sure your employees are aware sanctions may be imposed and WHY. Give the employees a chance especially if it is new and the Company is old!!! Many just hate change
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Posted By John Murgatroyd
It's almost certain that many remember, and will have told others, that it was policy to give people medicals and then get rid of those who "weren't up to scratch".
That, coupled with the near 100% certainty that any confidential information held by managers, about their employees, is as confidential as the front page of the Sun, will guarantee that some are bound to refuse.
Hands up all those companies taking care to keep the information secure and available for 40 years ?
Yeah....right.
As for section 7....let's not quote parts, please.
Company lawyers. A pox on them.
(b) as regards any duty or requirement imposed on his employer or any
other person **by or under any of the relevant statutory provisions**, to cooperate
with him so far **as is necessary** to enable that duty or requirement
to be performed or complied with.
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