Could this perhaps be construed as health surveillance, a part of the employer's measures to ensure health and safety of employees, in which case the employee has a legal obligation to co-operate and comply (with all that is reasonable).

I agree with the above post, however in practice it is not so simple. For instance, many h&s questionnaires and other documentation is confidential, where the author does not have to reveal their identity or personal matters. Applying the law in your scenario is problematic. I suggest guile and persuasion would be more effective than simply relying on the law.

Sounds like they dont want to work night-time. Suggest someone (usually HR) go over the working time directive requirements with them and then state that they need to confirm if wish to work / not work night rota's. Then assess if they can / cannot. Or, phone the H&SE info line to see if there is a legal requirements stating that the employee must do it..............

Indeed Claire, but the originator implies that these workers are/may not be night workers yet. I still think consultation rather than confrontation will prove more fruitful in this instance.

Claire Thanks for clarifying the WTR. However, I have not come across the relevant section where employees CAN REFUSE the health assessment. I am also unlcear why you still disagree with me as your clarification appears to confirm my views?

There are very few circumstances where those in the UK, and no doubt in most other civilised countries, can be made to submit to medical examination. The list is small, and must be validated by a senior Public Health professional with a strong index of suspicion of some very serious infectious disease - think smallpox, some of the viral haemorrhagic diseases, multi-drug resistant TB etc. Even then, the relevant legislation that can ensure enforced isolation of suspected cases might not extend to compulsary medical examination. The situation may be different for children where parental consent is sufficient but in circumstances where the State has for some reason taken on that parental role. H&S professionals are often bullish in their approach to so many things, but expecting that there can be any conceivable reason to force an individual to medical examination just because they work nights is just plain crazy

Ian you are confusing a medical examination and health surveillance. Health surveillance is often just a questionnaire or self-checks that may be followed up by a doctor / nurse visit if necessary. Sometimes medical surveillance may be required through, maybe biological monitoring such as urine or blood samples, when exposed to some hazardous substances or lead for example. Health surveillance and boiological monitoring can be enforced through COSHH and other Regulations. Employees are not allowed to refuse as the employer has the duty to carry out the surveillance and the employee has the duty to co operate. However, according the guidance I have on WTR employees can refuse health surveillance for night work. However, if I was an employer if an employee refused surveillance for night work I wouldn't allow them to work nights. I would have it as a part of the contract pf employment.

Ian, the point I was making is that we were talking about health surveillance and not medical examination i.e. employees taking a health assessment questionnaire to assess suitability for night work, no invasive tests nor medical examination. As for the whole human rights vs legal duty, I'm not prepared to get into a potentially volatile discussion about that whole issue. However, I think perhaps you need to calm down a little you're being very aggressive.

Ian, would you please stick to the topic, which is health surveillance of night workers, which is a questionnaire. For the record I am not incorrect about biological monitoring for employees working with some hazardous substances, if they want to continue working with those substances then they have to have biological monitoring, for lead that is blood tests. Of course they can choose not to have the tests but then they would not be allowed to work with those substances. Now will you please stop it. I think we all understand that your position on the matter but we are talking about health qustionnnaires so please stick to that and stop trying to have an argument.

jwk, for the WTR Regs you are correct that health surveillance is optional, I said that in an earlier post. This is a quote from the guidance doc I have on: "Workers do not have to take up the opportuntiy to have a health assessment but it must be offered by the employer. A health asessment can be made up of two parts, a questionnaire and a medical examination. The latter is only necessary if the employer has doubts about the workers fitness for night work" The use of questionnaires for health surveillance to comply with other regulations is there. This is a quote from the HSE's guidance on how to comply with COSHH in controlling wood dust which is an asthmagen: "Because wood dust causes asthma, you need to make sure that any health effects are picked up early. This can be done using health surveillance. For most woods, a low level of health surveillance is sufficient. This consists of a questionnaire administered before anyone starts work where they are exposed to wood dust, and then repeated annually. These questionnaires also provide information on what to do if you think someone has been affected. A higher level of health surveillance, including lung function testing, is needed for exposures to western red cedar which is a known asthmagen." As for employees choice in the in the matter this a quote from Reg 11 of COSHH: " An employee to whom this regulation applies shall where required by his employer and at the cost of his employer present himself during his working hours for such health surveillance procedures as may be required for the purposes of paragraph 1...and will furnish the releant doctor with such information concerning himself as the relevant doctor may reasonably require"

It is obvious that WTR questionnaires etc have to be offered, but there is no overiding duty on the employer to ensure that it is done! That is different from specific aspects of COSHH (& Lead at Work Regs) for example under Schedule 6 i.e. Medical surveillance under COSHH (2002-as amended) Regulation 11(2)(a) and (5). In the case of COSHH if under scope of Schedule 6, there is an overiding duty. Obviously, if employees do not want to co-operate, then internal procedures for not complying with health and safety i.e disciplinary etc have to be used as a last resort. My expereince is that if a programme is communicated properlyy and employees ansured that the medical details indeed are confindential, and in most cases, the employer only gets that information on whether a limit is exceeded or not and even that is via consent !