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Contacting Ill employees and Data Protection
Rank: Forum user 
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I've had an employee of Work for over a month, due to a reaction he took to a product in the Warehouse. I've been informed by HR I am in no terms allowed to contact him to ask about his well being or ask for Doctors Note to support his length of time off (this guy has history of milking injuries), due to Data Protection and sensitivity of his illness. Is this right that the Health & Safety Officer / Manager cannot contact injured parties?
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Rank: Forum user
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I'm not completely across HR law, but since you already know that he's off work and you're responsible for investigating his absence from the point of view of establishing whether it is a work related absence, I don't see how there's a data protection issue. For one thing, you need to know if the exposure to the substance constitutes a RIDDOR Reportable event on the basis of an absence of over 7 days, I don't see how contact asking him how he is would be illegal, and from a data protection point of view he can chose weather to give you that information or not. He does, however, have a legal duty to comply with his employer with respect to provisions regarding health and safety and that would include investigation of the incident.
You mention that he has history, could it be that HR are trying to keep you away from this more as a peace keeping measure than any real concern over the legality of, what seems to me, to be a perfectly legitimate line of enquiry. I've certainly done it and never had a problem.
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Rank: Forum user
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graemecollard wrote:I'm not completely across HR law, but since you already know that he's off work and you're responsible for investigating his absence from the point of view of establishing whether it is a work related absence, I don't see how there's a data protection issue. For one thing, you need to know if the exposure to the substance constitutes a RIDDOR Reportable event on the basis of an absence of over 7 days, I don't see how contact asking him how he is would be illegal, and from a data protection point of view he can chose weather to give you that information or not. He does, however, have a legal duty to comply with his employer with respect to provisions regarding health and safety and that would include investigation of the incident.
You mention that he has history, could it be that HR are trying to keep you away from this more as a peace keeping measure than any real concern over the legality of, what seems to me, to be a perfectly legitimate line of enquiry. I've certainly done it and never had a problem.
I've already completed the RIDDOR report. When I contacted him, it was a simple 'how are you keeping', 'oh, could you bring a Doctors report when you return to work', as he could well have had serious issues regarding his injury, and I would obviously need to take appropriate action based on this....I brought this up a month ago at your H&S Meeting, and HR were to send out a letter to him and they have only done it this morning, which is good timing since its when they found out I spoke with him, hence the heated phone call I got from HR....Just looking clafication encase maybe I should not contact an Injured Party, but anywere I've worked previously, we always did, sometimes even called to their house to check on them (not in a suspious manner, but a genuinely wanting to ensure they are coping)....Could be some politics behind it, normally is
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Rank: Forum user
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Sounds like it mate.
Like you say, the main thing is that he's ok.
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Rank: Forum user
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graemecollard wrote:Sounds like it mate.
Like you say, the main thing is that he's ok.
I don't think he was ever unwell....maybe a small rash on his hand...but when I spoke with him 2 weeks ago, he kept putting on a fake cough, and then again today...definitely someone who comes to work to look for ways to get a claim...he has previous of it, and not just where I work
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Rank: Forum user
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very frustrating. Particularly if you're HR department is ham stringing you from proving it.
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Rank: Super forum user 
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I think your HR person is talking a load of poop. There is nothing to prevent you from contacting an employee off long term sick from either a wellbeing perspective or to request a GP's fit note. Indeed, I think a reasonable and caring employer would make enquiries as to the condition of the employee, whether they are receiving any medical or needing occupational health assistance.
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Rank: Forum user
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Does not Health and Safety take precedence over HR?
How are you fulfilling your duties under law in preventing the incident happening again if you cannot get to the bottom of what caused the 'ill health/injury' in the first place?
As a side point why do business owners/MD's in general take everything said by HR as gospel and act on any measure put forward, but H&S is not so as important!
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Rank: Super forum user 
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I believe that if your organisation had suitable sickness absence processes it would be the person's supervisor who would contact them, offer appropriate support, etc. Obviously part of that would be to expect cooperation so that the effects and causes of possible exposure could be understood, so as to prevent recurrence. Such investigations are best led by a line person, advised by yourself rather than the reverse - which is what you seem to suggest.
Also the processes should include establishing communications between the GP who is issuing the Fit Note(s) and a 'case coordinator' at the workplace, so as to enable return to work asap with any appropriate 'reasonable adjustments'.
Line managers should be at the centre of such processes, but of course advised appropriately by OSH, OH and HR professionals, who may take the lead in certain areas if that's agreed by all. From your summary it seems there are no defined processes, no role for line managers and, possibly, insufficient access to the required competent professionals?
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Rank: Forum user
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jon joe wrote: 'oh, could you bring a Doctors report when you return to work',
I'm HR trained now working H&S role and I see no legal issue with what you have done with the exception of the above statement.
If you simply mean a Statement of Fitness to Work then no issues what so ever but if you mean an actual detailed report from his GP then you need to request this in accordance with The Access to Medical Reports Act 1998. In the type of senario that you have described I would usually get occupational health involved at an early stage, particularly if you feel a claim is coming, as they can not only help you with your investigation but they could also assist in getting the individual back to work quicker if possible thus lowering the potential claim value as he has lesser loss of earnings.
I do agree however that this is something which should be done between line managers, H&S and HR.
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Rank: Super forum user 
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The employee will already be sending in medical certificates. Doctor's Reports cost money.
Contact with the absent employee will be a matter of internal company protocol - you should not assume the right to contact the employee. Better to familiarise yourself with company procedure. This should be done (and usually is) via HR and/or his manager. There may be a condition of employment contract requiring him to attend occupational health appointment after a certain period.
Your repeated allusions to hearsay and rumour regarding the honesty and character of this employee are IMO (at least) wholly inappropriate.
In short, I see no reason at all for you to contact this person directly.
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Rank: Super forum user
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fscott wrote:jon joe wrote: 'oh, could you bring a Doctors report when you return to work',
I'm HR trained now working H&S role and I see no legal issue with what you have done with the exception of the above statement.
If you simply mean a Statement of Fitness to Work then no issues what so ever but if you mean an actual detailed report from his GP then you need to request this in accordance with The Access to Medical Reports Act 1998. In the type of senario that you have described I would usually get occupational health involved at an early stage, particularly if you feel a claim is coming, as they can not only help you with your investigation but they could also assist in getting the individual back to work quicker if possible thus lowering the potential claim value as he has lesser loss of earnings.
I do agree however that this is something which should be done between line managers, H&S and HR.
"Consent to applications for medical reports for employment or insurance purposes.
(1)A person shall not apply to a medical practitioner for a medical report relating to any individual to be supplied to him for employment or insurance purposes unless—
(a)that person (“the applicant”) has notified the individual that he proposes to make the application; and
**(b)the individual has notified the applicant that he consents to the making of the application.**
(2)Any notification given under subsection (1)(a) above must inform the individual of his right to withhold his consent to the making of the application, and of the following rights under this Act, namely—
(a)the rights arising under sections 4(1) to (3) and 6(2) below with respect to access to the report before or after it is supplied,
(b)the right to withhold consent under subsection (1) of section 5 below, and
(c)the right to request the amendment of the report under subsection (2) of that section"
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Rank: Super forum user 
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Imwaldra has it.
Clearly your company has a dodgy system and this chap is milking the fact.
If HR had done their job right in the first place they would not need to make up daft yarns.
You could instigate a bullying complaint against the HR person you told you off ;-)
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Rank: Super forum user 
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I suspect that HR may just want to do the contacting themselves rather than you do it - it is up to them to set the policy on who makes the contact.
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Rank: Super forum user
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U cannot do your job without knowledge and part of the knowledge gaining activity is obtaining information e.g. asking the IP about the accident etc. and in all my years at work [I used to be a personnel/HR manager] the 1 and only area that is seen as being neutral and trustworthy by employees in general is H&S so its the best tool that an employer should use to help find out the truth and defend itself. Additionally in all the cases that I have dealt with where the employer did all that they could, e.g. went to an employees home to give support to the IP the employers usually came off better than they would have otherwise
U should use all your skills to educate HR etc. as to what is needed especially about D-protection noting also that it is a requirement in law to investigate certain accidents [alleged or otherwise] that may end up making a claim via SS areas and like it or not H&S does not have the ear of management and never will - once U have done all that U can to educate move onto something else
best of luck
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Rank: Super forum user 
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I used to work in the Gas Industry & every lost time accident resulted in either a visit at home or when the employee returned to work.
These were carried out by H&S professionals, & in the main, well received by the IP.
The home visits did prove quite interesting, e.g. the guy on the ladder putting up a heavy wooden curtain pole (I was let in by his young son) - off with a "bad back"; another "bad back" who was found under his car on his drive fitting a new exhaust or the "helpful" neighbour who informed me that our employee always took time off at this time of year (pre Xmas) as his wife was a hairdresser & thus busy!
For the genuine cases we were able to take remedial action a lot sooner & the spin-off was that we continually had the lowest accident rates in the Company.
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Rank: Super forum user
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Ron Hunter wrote:
Your repeated allusions to hearsay and rumour regarding the honesty and character of this employee are IMO (at least) wholly inappropriate.
Here - Here
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Rank: Super forum user
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"Your repeated allusions to hearsay and rumour regarding the honesty and character of this employee are IMO (at least) wholly inappropriate"
Sadly though: They are common in small and medium business.
If a medical report is requested you will have to contact the absent employee and gain consent. The medical practice will contact their patient anyway. The cost [to you], at my medical practice, will be £140.00.
Hopefully the employee is not suffering depression...yet. I'm sure you will soon remedy that though.
IDS can learn a lot....
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Rank: Super forum user 
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I have a friend who is off work at present with stress, he has been off for about 8 weeks and has been hounded by the company. The company policy is that even if the Dr gives you a note for say '4 weeks' you still have to phone in daily. This to me adds pressure to the person who is sick. My friend has been asked every time he phones up when he is coming back, they also constantly offer to bring him in on a phased return even though he still has weeks to run on a sick note.
I not against being visited but I think people also need to understand that 1) they do not have to be on their own 2) it does not have to happen at home, then can meet in a pub, library, the public park etc. 3) They can make notes as well and get the company visitor whoever it is to sign their notes aswell.
If welfare visits were used correctly they would benefit both the company and the person, sadly on occasions they are used to bully and intimidate people into returning to work before they are well enough.
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Rank: Super forum user
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Invictus is spot on
U can see why this person is off work so things must be carefully done but unfortunately many companies operate this way especially in these times when workers are extreamily cheap and there is a very low risk of a company ending up in a criminal or even civil court - barristers that I worked with stated that its cheaper for an employer to do things as they do hence they get away with all sorts
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Rank: Forum user
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Ron Hunter wrote:The employee will already be sending in medical certificates. Doctor's Reports cost money.
Your repeated allusions to hearsay and rumour regarding the honesty and character of this employee are IMO (at least) wholly inappropriate.
.
Not when he previously was off injured, but his ex production manager found photo's on his facebook of him on a stag do, when he should have been ill
Not inappropriate in the slightest.
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Rank: Super forum user
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jon joe wrote:Ron Hunter wrote:The employee will already be sending in medical certificates. Doctor's Reports cost money.
Your repeated allusions to hearsay and rumour regarding the honesty and character of this employee are IMO (at least) wholly inappropriate.
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Not when he previously was off injured, but his ex production manager found photo's on his facebook of him on a stag do, when he should have been ill
Not really sure what your point is about him being on a stag night. Did they have the same product in the pubs he was going to as they do in the warehouse, that he claims to of had a reaction to?
Not inappropriate in the slightest.
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Rank: Forum user
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Toe wrote:Ron Hunter wrote:
Your repeated allusions to hearsay and rumour regarding the honesty and character of this employee are IMO (at least) wholly inappropriate.
Here - Here
HEAR hear
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Rank: Super forum user
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Not really sure what your point is about him being on a stag night. Did they have the same product in the pubs he was going to as they do in the warehouse, that he claims to of had a reaction to?
Not inappropriate in the slightest.
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Rank: Forum user
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Invictus wrote:Not really sure what your point is about him being on a stag night. Did they have the same product in the pubs he was going to as they do in the warehouse, that he claims to of had a reaction to?
Not inappropriate in the slightest.
his previous when a claim went in, said he was house bound for 5-6 days (this was all before I joined the company but ive seen the reports)..but he flew out on holiday the day after he sustained the injury....Claim was thrown out...he kept his job though.....So based on that, and people who know him stating they've seen him drinking in the pubs, when he apparently has respiratory issues, I would say im in my right to question his sincerity
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Rank: Super forum user
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if he is not in contact with the product then his breathing should improve and if it doesn't then his claim against the company will be greater.
We all know there's blaggers out there, so best not to give them an easy way out.
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Rank: Super forum user
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I see but why do you feel it is right to publish the details of your suspicions on a public website?
It has occurred to me that your HR may be worried that your pre-judging of the case may make you the wrong person to investigate it and they prefer someone who hasn't evidently already made up their mind to do it. Because even if your suspicions are correct, the investigation needs to be clearly fair.
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Rank: Super forum user
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I can't really understand why a H&S practitioner is getting involved in contacting off work employees, or visiting their home, regardless of rumour or suspicion of 'mis-play'
UNLESS at the specific request of the line manager, and with agreement of all concerned, and it fits with the organisation's protocols.
If there is an HR department, they and the line manager should be liaising over absent staff.
If there is concern about investigation - well - still usually a line manager role anyway.
I have visited workers as part of a (serious) accident investigation, but with either a welfare officer (when they existed) or the line manager. Never off my own back - I am not their manager.
If there is suspicion over stories, even more reason for the H&S person to stay well back.
H&S specialists can discuss incidents, hazards etc. with the line manager, or HR, of course, and help them to determine their interventions and actions, but I would stay at arms length, otherwise neutrality and credibility can be compromised.
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Rank: Forum user
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Kate wrote:I see but why do you feel it is right to publish the details of your suspicions on a public website?
It has occurred to me that your HR may be worried that your pre-judging of the case may make you the wrong person to investigate it and they prefer someone who hasn't evidently already made up their mind to do it. Because even if your suspicions are correct, the investigation needs to be clearly fair.
I haven't published my full name....my company etc...therefore, don't see much issue to be honest
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Rank: Super forum user
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I think the point made about you perhaps pre-judging could be the reason HR have asked you to back off could be valid.
It does appear that you have been judge and jury, maybe with good reason but if you are voicing this in ear shot of other employees they could be feeding it back to him.
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Rank: Super forum user
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What your company needs is a clear protocol where everybody knows they are doing and why they are doing it. This should not be subject to pointless turf wars involving HR or H&S. At my last job the agreed policy was for HR to contact anybody who was off sick ASAP after they called in and they asked the question if the issue was H&S related. If HR felt it might they would pass the issue onto me to follow up. I was interested in establishing the cause of the injury or sickness or what we might need to do when they came back to work (that was done in conjunction with our OH adviser). I was not particularly interested if the person involved was trying it on. If it looked like they were it was referred back to HR to deal with any disciplinary issues.
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Rank: Super forum user
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A Kurdziel wrote:What your company needs is a clear protocol where everybody knows they are doing and why they are doing it. This should not be subject to pointless turf wars involving HR or H&S. At my last job the agreed policy was for HR to contact anybody who was off sick ASAP after they called in and they asked the question if the issue was H&S related. If HR felt it might they would pass the issue onto me to follow up. I was interested in establishing the cause of the injury or sickness or what we might need to do when they came back to work (that was done in conjunction with our OH adviser). I was not particularly interested if the person involved was trying it on. If it looked like they were it was referred back to HR to deal with any disciplinary issues.
Hooray.
Give the man a ceeegarrrr.
So he went to a stag do.....
If you looked at me, you'd think I should be grafting (apart from being retired).
Look at my chest X-ray and things do not look so good.
Jumping to conclusions is ok if you're right.
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Rank: Forum user
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Invictus wrote:I think the point made about you perhaps pre-judging could be the reason HR have asked you to back off could be valid.
It does appear that you have been judge and jury, maybe with good reason but if you are voicing this in ear shot of other employees they could be feeding it back to him.
I didn't actually find out abuot his previous til after I had contacted him, and HR were in the room when I was informed....my issue, and rightly said by several here, is that there should be a protocol...well there is, but it wasn't being followed, which is why I called, as this had dragged on weeks...thinking about it, there is fault from my actions, but I would rather break a HR Procedure (when I believe there is grounds), if it means getting to the bottom of an injury and being able to put safe guards in before it was too late
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Rank: Super forum user
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JohnMurray wrote:A Kurdziel wrote:What your company needs is a clear protocol where everybody knows they are doing and why they are doing it. This should not be subject to pointless turf wars involving HR or H&S. At my last job the agreed policy was for HR to contact anybody who was off sick ASAP after they called in and they asked the question if the issue was H&S related. If HR felt it might they would pass the issue onto me to follow up. I was interested in establishing the cause of the injury or sickness or what we might need to do when they came back to work (that was done in conjunction with our OH adviser). I was not particularly interested if the person involved was trying it on. If it looked like they were it was referred back to HR to deal with any disciplinary issues.
Hooray.
Give the man a ceeegarrrr.
So he went to a stag do.....
If you looked at me, you'd think I should be grafting (apart from being retired).
Look at my chest X-ray and things do not look so good.
Jumping to conclusions is ok if you're right.
Thanks for the comments…
What I wrote might seem obvious but it is not unusual for H&S professionals to put themselves into situations where, they rely on the force of their personality to get things done/start a row rather, than agreeing policies, procedures and protocols before the stuff hits the proverbial. Of course once they are agreed everyone must follow them or is that too obvious?
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Rank: Super forum user
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I shouldn't pre-judge that you had pre-judged. Lesson learnt
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