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Posted By Shane Johnston
We conduct audiometric, lung function tests etc on a number of our employees when they start working for us to establish a baseline for the individual. We then routinely conduct repeat medicals to look for any defects or deterioration. These medicals are conducted by our own Occupational Health Advisers who are all RGNs with an Occupational Health Degree.
We are thinking of conducting medicals on those same individuals when they leave our employment. I think this would enable us to offer a defence against any claim presented several years later. I know of cases where, because the cause of an individuals hearing loss could not be identified, the claim was shared between his previous employers. If we could provide records showing that hearing was unaffected when he left us, would this be acceptable in defence ? And can we "force" individuals to have this exit medical ?
The reason I ask is, would the fact that our OHAs are not independent (i.e. we pay them), go against us in any way? And as the exit medical is not for the protection of the employee (more for the protection of the employer), does the employee still have to co-operate with his employer under section 7?
Thank you in advance,
Shane
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Posted By Robert M Edwards
These medicals, even if you could persuade your employees to take them, would have limited to no use in a legal case for occupational injury defence.
In fact because of the punitive measure they appear to have on those terminating their employment, they may well be tested in an employment law tribunal first!
The use of your own experts could be used as part of your evidence, but would just be part of your own case in defence.
The ultimate symptoms would have to be examined as a lot of such cases have a latent aspect which would not be present as they were leaving employment. This examination would need to be in accordance with court rules on admissability of medical evidence from an independant source.
Far better to ensure compliance with risk mitigation and the wearing of protective clothing than attempt to head off a claim in this way.
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Posted By Neil Pearson
I'm a little surprised by Robert's response above. Many companies undertake exit medicals. These clearly can benefit employee or employer. If the exit test shows no unexpected change in hearing during employment, then the employer can show that they did not contribute to any future NIHL. If the test shows damage, then the employee may have a case for a claim. Seems quite equitable to me.
The fact that the OH staff are internal does nothing to hurt you - whether you outsourced the testing or not, it is still up to you to ensure that the tests are carried out properly. In many ways, this becomes easier for employed staff.
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Posted By Neil Pearson
Forgot to address the question of getting people to accept the tests. It is an implied term of any employment contract that the employee co-operates with "lawful, reasonable orders". A more practical question is how to win them over, and the answer is the simple common-sense explanation I gave above. The employee stands to benefit from the test if any loss is revealed by the test.
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Posted By Robert M Edwards
Shane's question asks about the use of this sort of evidence in claims ( presumably court cases) and my opinion is based on that aspect.
If these exit medicals have been helpful to companies in successfully defending claims then that is a bonus, but I would suggest that they are at best of limited use, possibly none in most cases.
An employment contract does not allow for intrusion or, punitive medicals at the point of termination of that contract. Whilst the employee will be under contract to reasonably assist the employer the timing of these medicals is my issue.
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Posted By Neil Pearson
I can't quite see what could be "punitive" about this. You test an aspect of someone's health, you get a result. Employer and/or employee may benefit.
If an employee wants to make a claim for hearing loss for example, evidence of the damage and when it occurred would be rather helpful.
Apart from mistrust and lack of explanation, I honestly can't think of any real reason for an employee to refuse such a test. Unless that employee feels their hearing is fine but wants to make a false claim anyway?
The test can obviously help an employer manage better, because it shows whether risk controls have worked. This seems a perfectly reasonable basis to ask employees to co-operate.
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Posted By Robert M Edwards
And can we "force" individuals to have this exit medical ?
I have dealt with Shane's answer and provided an opinion based on his scenario. he clearly anticipates some form of resistance.
If an employee felt this medical exit procedure was for his benefit then it would, of course not be considered to be punitive.
However if the purpose of the exit medical was to provide a defence for future litigation only as seems to be the case here.
Ie be so narrow in scope in the examination as to simply provide for mitigating future potential litigation claims then I would say that employees could object, successfully as an invasion of privacy.
I have to say,I cannot imagine that many employees would perceive an exit medical as anything other than self protective of the employer. It was standard in the military so I am well used to this spurious argument in its favour!
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Posted By Neil Pearson
Seems a negative approach to me. There are always employees who are suspicious of health surveillance generally, and especially of questionnaires on their past history and exit tests. But they always come round to a calm sensible explanation, every time. Not always immediately, but I've never known disciplinary procedures be invoked, so the question of forcing employees has never been that important. It's all about how you deal with people I guess.
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Posted By Neil Pearson
Sorry, I've just understood what the problem is. Bit slow on a Monday. This is what happens if you try to implement something without carefully managed consultation. If you get the employees to buy in first then there's never that much trouble in my experience. Mind you, I've never tried that in such a large organisation as the military!
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Posted By Robert M Edwards
Yes Neil, I think the main concern of Shane was how do I bring this in and its sole purpose seems to be the mitigation of legal issues. In huge organisations such as the military the rationalle behind it is transparent- to protect the employer so no wonder ex-servicemen are sceptical!
We have introduced such medical schemes in a number of client's businesses , particularly those dealing with medical testing with no problems. The key is there has to be an open dialogue and a transparancy of process and aim which is clear to all to make it work. Litigation protection as the sole aim will just not work.
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Posted By Dave Wilson
Being ex RM/RN the PULHEEM which is done as part of your release procedure is to record any medical problems on release and give the MOD the opportunity to offer treatment etc.
It is also the Sailors/Bootneck opportunity to get something down on their F Med 4 record which van be used later for a claim for an 'attributable' disease or injury as part of service life. This will make it easier for the Veternas Agency (old WPA) to admit / deny claims for a War Pension.
I would suggest that any ex Servicemen out there (of any age)who think they may have a claim get in touch with the Royal British Legion pensions dept in London before you speak to anybody as they will represent you.
Also if you get 'discharged' as medically unfit from the MOD as a result of service, your pension is indexed linked and tax free immediately on discharge.
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