Can an employee refuse an occupational health referral?

Can an employee refuse an occupational health referral?

They can. Faculty of Occupational Medicine guidance for occupational physicians is that consent is needed to carry out an OH assessment at all: the individual “should be informed about the purpose and nature of the assessment and give their informed consent to the process and the preparation of any report”. The same guidance puts the practical point bluntly - if people “don't agree to be referred, or to the production of a report, then forcing them to submit is neither ethical nor practical”.

So even where a contract of employment contains a clause requiring cooperation with a medical examination, that clause cannot manufacture the clinician's consent. It may make refusal a contractual matter between you and the employee - it does not get the assessment done.

What is the difference between refusing a referral and withholding consent?

These are different decisions at different points, and conflating them causes most of the confusion. There are four separate gates:

1. Consent to the referral itself. They decline to be referred at all - nothing happens.
2. Consent to the assessment. They attend but can decline to answer particular questions.
3. Consent to a report being prepared and sent. They can attend and still decline release.
4. Withdrawal after seeing the report. Consent can be withdrawn at any stage, and the adviser must respect that.

Where consent is withdrawn after the employee has read the report, the FOM guidance tells the OH physician to tell the commissioning employer “the truth - simple facts unembellished by supposition or presumed motives”: that a report was prepared, offered to the individual, and consent to send it was then withdrawn. You learn that it happened. You do not learn what it said.

When does the Access to Medical Reports Act 1988 apply?

This is the point most published guidance gets wrong. The Act defines a “medical report” as one “prepared by a medical practitioner who is or has been responsible for the clinical care of the individual” - that is, their GP or treating specialist. A one-off assessment by an independent OH physician who has never provided that person's clinical care generally falls outside the Act.

It matters because the two routes carry different mechanics:

The exception worth remembering: if the OH physician has also been responsible for the person's clinical care, AMRA can apply to their report too. And under s.3(2), the notice you give before applying to a GP must itself tell the employee about the right to withhold consent, the right of access before supply, and the right to request amendments - a step employers routinely skip.

What happens if an employee refuses to attend occupational health?

You proceed on what you have. That means the fit notes, the absence record, the job's demands and whatever the employee has told you directly - and nothing else. In practice this is the worse outcome for them, because the clinical context that might have explained the absence, justified an adjustment or changed the timescale never reaches the person making the decision.

That's not a threat to make; it's a consequence to explain. Set it out neutrally in writing: what you were hoping to learn, what you'll now have to decide without it, and by when. Then leave the door open.

Be careful about jumping to sanctions. A refusal is rarely obstruction. It's usually anxiety about who will read the report, a bad experience with a previous employer, or a simple misunderstanding that OH reports the diagnosis - which it doesn't. See what an employer can ask occupational health.

Does refusing affect reasonable adjustments?

Not in the way employers hope. The Equality Act 2010 duty to make reasonable adjustments is engaged where the employer knows, or could reasonably be expected to know, that a person is disabled and disadvantaged. A refused referral doesn't unlearn what you already know from the fit note, the conversation or the pattern of absence.

Nor can you outsource the judgement. In Gallop v Newport City Council [2013] EWCA Civ 1583, Rimer LJ held that “the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser's opinion that he is not.” If that's true when OH has answered, it's true when OH never got the chance.

Acas's guidance on disability-related absence notes that an employer “could consider getting medical advice, for example an occupational health report, to help them decide what adjustments to make” - help them decide, not decide for them. Where the advice is missing, you still have to make a reasonable attempt with the information available, and record how you did it.

How should an employer respond to a refusal?

• Ask why, once, properly. Most refusals dissolve when someone explains who reads the report and what it will say.
• Share the referral. Show them the actual questions you're asking - see the OH referral letter template. Suspicion usually dies on contact with the document.
• Offer choices. Telephone or video rather than in person, a different provider, or a report they see first.
• Explain the consequence in writing. Neutral, dated, no ultimatum. Then invite them to reconsider by a stated date.
• Consider a narrower question. Sometimes a single question about one duty is acceptable when a full assessment isn't.
• Record the decision and your reasoning. If you later have to act without medical advice, the file needs to show you tried.

Then carry on managing the absence properly: hold a sickness absence review meeting, read the note against the fit note employer guide, and if a return is in sight, write it down using the phased return plan. If the trigger was frequent short absences, check your trigger points and the Bradford Factor. For mental health cases the framing matters most - see mental health absence and when to refer to occupational health.