Can 'line managers' be given access to previous OH reports on you?

[Silverhope77]

Asking because a colleague who recently returned from sick leave found out my interim line manger before I left for maternity leave had requested a report on her to find out if she had mental health issues, so it's likely they'll do the same on me. She called me to give me a heads up. Is this legal? If so, how low can an employer go legally to provide evidence for dismissal if you are legally protected ?
Our workplace is going through a huge restructuring and although both me and my colleague's jobs should be safe, we've both encountered underhand tactics to get us to leave or sacked. It's feral and toxic, unlike anything I've ever experienced.
My original line manager referred me to EAP and OH back in early 2023 after I had a serious bout of illness and MH issues over 8 months in 2022. The referral actually saved my life. I got a proper diagnosis through work's health insurance and went on to happily return to a new role. I was lucky enough to fall pregnant with my second child last year. I do have a disability but assessment took years and formal diagnosis was only confirmed last year. I will be requesting reasonable adjustments on my return to work in September. However my new line mangers put me through an awful performance review a few weeks ago (while on Mat leave) and have graded me as being off track. I believe it was so they can constructively dismiss me without fair severance. They told me there were more job cuts to come and those with off track grades would be likely to lose their jobs. The rating will go against me if I try and go for other roles in the organisation. I've never had a poor performance rating in my career and I've been at my current workplace for 10 years. I acknowledged some of the feedback, but I had evidence to prove the outcome was not on my failure to perform, but the circumstance. Most of feedback given to me was marked as verbal and highly biased. It was never discussed with me prior to this meeting with me, nor raised at any point before my leave. Unfortunately I can't change the rating, I was only made aware of it in the last day of grading. I submitted my comments to the review into the HR system.
My current managers claim they supported my health and pregnancy but nothing was ever formalised. There is certainly nothing in writing acknowledged by me. Apparently my original line manger threw me under the bus a bit before he was made redundant last year, again feedback was verbal. But could he have shared my OH reports with the new managers? And is this legal?
I know there is more headcount than roles now and it's more competitive for those roles than before I left. The market is harsh and I can't afford to be out of work.
I've been in touch with ACAS and I'm speaking to a lawyer on Monday but I'm trying to prepare myself for any further nasty surprises. I'm nervous about going down a grievance route because the medication I was put on by the NHS in 2022 led to seizures and horrific cyclomania, I had a minor car incident with legal repercussions due to my state of mind at the time. I don't want it dragged up again and feel it's unfair to do so. Ironically I had a good end of year rating then, and the following year. Thanks for reading.

As I understand it, managers can request an OH assessment but they don't get to see the record of the clinical findings. OH will prepare a report which states their opinion on whether the employee can do their job safely given the clinical diagnosis. The report could recommend special equipment, lighter duties, phased return to work, that sort of thing.

HTH

You are doing the right thing by speaking to acas/lawyer, but also join a Union for additional support and protection. Particularly important where maternity/disability protections maybe being ignored.
Seems odd you can't challenge a grading that seems out of kilter with evidence of how you are getting on. Should they even be doing this during your mat leave?
Please note it is a job role that is made redundant - (not the individual). So their grading system is ridiculous and possibly a form of intimidation.....
If a person needs managing out due to poor performance...that is completely different!
Make as many notes as you can of rough dates and what happened over the years, so you have that information to hand for the future. It sounds like the company maybe up to some dirty tactics, so you do need to protect yourself and be prepared for what they might do.
This does sound a toxic environment - would you really want to return? Perhaps start considering looking at new jobs.

a colleague who recently returned from sick leave found out my interim line manger before I left for maternity leave had requested a report on her to find out if she had mental health issues, so it's likely they'll do the same on me.

A amanger can request anything they want but it does not mean that they will get it. OH will, if asked, make recommendations as to someones fitness for work and any recommended arrangments - they will not support a fishing expedition. Nor would a report on previous mental health issues have any usefulness to the manager - it would not support any current decisions about somebody, but it very well would raise potential discrimination or other concerns about the manager if they were to use it in any formal situation.

If you are on maternity leave the employer can only make you redundant if there is no alternative - if there are still jobs (i.e. there are cuts but not all roles are going) then you are first in line for one of the remaining jobs no matter what criteria for redundancy are used.

Please note it is a job role that is made redundant - (not the individual). So their grading system is ridiculous and possibly a form of intimidation.....

I do not agree with this statement by a PP - if there are redundancies then a performance grading system is a perfectly legitimate criteria to use, but whilst you are on maternity leave it is irrelevant anyway.

join a Union for additional support and protection. Particularly important where maternity/disability protections maybe being ignored.

It is important to have the protections of union membership and I would agree that it is wise to join one, but be aware that a union may not represent you in any issue which has already begun. That said, I would suggest that unless there is something to actually deal with (to date it appears that nothing has actually been done against you except a difference over the performance rating which you have commented on anyway) that you stop fretting about it, enjoy your maternity leave and wait until something does happen. If anything does happen at all it will almost certainly be after the end of your maternity leave. With respect, right now all you really have is "someone else told me something that hasn't happened and may never happen". Don't get caught up in possible things. ANything is possible but don't worry about it until it does.

Thank you, that's put my mind at rest a bit. I should be speaking to HR anyway on Monday after I've spoken to a lawyer. I trust HR as much as I trust the line managers but I need to build up evidence for my case. I don't think comments in the HR system will be enough.

A manager can ask, but the person the report is referring to has to give permission. HR/OH can't release it without asking permission first.

However, it is usually HR policy for previous employment history to be made available (non-confidential material) to a new line manager. In practice, in large organisations undergoing multiple reorgs this rarely happens, and is often reliant on one line manager doing a proper handover to the new line manager.

Thank you. I've already started looking at new jobs and updating my CV but it's brutal out there in my sector. Toxic as it is, I'd rather have a job until I get a new one. I did speak to a Union but it's a little late to join at this stage. My role was made redundant in July, it was confirmed in writing I would be moved into an equivalent role on my old team. Despite asking several times what it would be the team leads wouldn't provide details. I don't think there is a role. More business lines have been cut since I've been on leave, on of which I assumed I'd be managing on my return to work.
They changed the grading system for performance as well last year as well, making it even more opaque on what categorises a good performer. It's all very convienient for the organisation. I grudgingly agreed I didn't hit all my targets for the year but I was unable to as my projects were postponed or shelved and stakeholders I was working with were either made redundant or moved to different business lines. They are maintaining these are excuses. I know HR is not there to protect me but they have to be somewhat above board as well. My thought process if I can I get them to recognise my evidence early I will have more ammunition when I return. I'll be documenting everything. Most of the role and work discussions have been verbal with little written communication. If they won't engage with me in writing I can still email them and their lack of response is surely evidence in itself? No actual adjustments were formally put in place for me for either my pregnancy or disability. Essentially I was told to take time for appointments, not to worry and wfh if needed. This has been noted in my review as lack of engagement and productivity on my part. I'd rather go out on my own steam than be forced out with this underhand behaviour. It would be very convenient for them for me to leave now, why should I? Thanks for replying.

Check your employer has followed the right redundancy process - Citizens Advice https://search.app/opyGzUDLh5d645yN8

If you're in the uk, the charity pregnant then screwed might be of help as you may be being discriminated against.

Thank you, the thought of someone digging around in my reports makes me feel ill. The same manager gave incorrect feedback in my performance review and lied about our interim review and handover in August to the current managers. They are willing to believe her over me and I'll have to work with her when I go back.
My current managers have implied that the grading system will be used when further job cuts will come. They maintained they took into account my pregnancy and health when evaluating my performance, so it's a separate issue. It's a weak argument in my opinion. They didn't take into account the impact of the restructuring on my projects and stakeholders being a significant factor as well on my progress last year. I performed well under the circumstances.
I am trying to not worry but their behaviour is not offering any comfort. I'm expected to have another meeting with them in a week's time about pay and given track record so far I don't expect it to be positive. When I left on leave I believed I would at least be protected due to my pregnancy but they are clearly trying to find loopholes to get around this. I don't want to be blindsided again, or stitch myself up because I naively trusted managers and colleagues had my back. If they manage me out on performance, which is subjective, they don't have to give me anything. I've been there for 10 years with a strong performance record, even for the period I was ill.

Maybe ask your solicitor whether it's worth asking for a copy of your records from work? You will then know what they know, and can ask for anything no longer relevant to be removed?

God, sounds like an awful place to work.

You're doing all the right things by the sounds of it with regards to ACAS/lawyer.

One thing that was suggested to me in the past (by a rare HR person that was actually decent/trustworthy), is that if you ever have concerns about the way you're being treated, is to do a Subject Access Request.

It's a legally binding request, and it'll serve two purposes. It'll show them your serious, and it'll show up any ways they've not followed due process (ie recording poor performance without actually telling you etc)

It won't sort a toxic workplace, and your best course is undoubtedly to leave, but it could help you/lawyers to perhaps negotiate an exit payout to tide you over while you look for another role.

Thank you, I haven't looked on CAB yet.

You added some new information about being made redundant already, and redeployed... My role was made redundant in July, it was confirmed in writing I would be moved into an equivalent role on my old team. Despite asking several times what it would be the team leads wouldn't provide details. I don't think there is a role. More business lines have been cut since I've been on leave, on of which I assumed I'd be managing on my return to work.

Could you please elaborate on this as it is important information which you did not include in the OP. Timescales would also be useful, please?

(a) your manager can go "digging around in reports" that they have possession of, but they cannot go on fishing expeditions. OH are very unlikely to give them anything, and if they did it would need to be related to a "now" situation - so a reasonable adjustment or something like that. The previous report ought to be on your personnel file anyway. That would be quite normal. But they certainly wouldn't be able to hand over any material that you hadn't already agreed to the employer having. I honestly think this is less of a problem than you think - using a previous episode, or even an ongoing episode of mental ill health against you would actually be a "gift" because it would hand you a second potential area of discrimination.

(b) you need to focus on what is real. Things that are implied or that haven't happened are impossible to quantify, to evidence or to do anything about. I will, however, confess that criteria based on performance are notoriously difficult to argue in a tribunal, and if they say that they took your circumstances into account that will be accepted unless you have overwhelming evidence that isn't true. The problem is that a tribunal may not, in law, replace the judgement of an employer with their own. So they couldn't listen to both side and say that your argument that it wasn't your fault was better than the employers argument that your performance was poorer even taking your circumstances into account. They would have to accept the employers judgement. And your previous record will not, in law, change that position.

(c) I am slightly confused by the fact that I think you are on maternity leave - if that is so, why are you attending meeting with work about performance or pay? Those things would normally be shelved until you are back at work.

HR bod here. Yes, if it's relevant. Eg currently working on a case with a manager where we need to consider recommended reasonable adjustments so they have access to the report. From a GDPR perspective this comes under 'legitimate interest'. Employee had the right to request redactions in the report , or the right for employer not to see it at all but clearly they need access to some content to be able to consider the recommendations.

Brilliant! I'll definitely ask for this. When I provided evidence on my side on there examples and comments they didn't respond other than. We've taken note and will discuss in a return to work meeting 🙄
I don't think they have any hard evidence I wasn't doing my job. Also performance issues were never raised during the year at all. Even in my interim review meeting. That wasn't written down my the them line manager either despite me requesting it so I could sign off on it. I chased her but then went labour. Still, no record.

Yes, I agree. It's not very toxic. My colleague who called me about the report snooping said it's increasingly like the Hunger Games in the office. Unfortunately the competitiveness is typical of my industry. If I had a decent payout I would spend some of it on retraining.

Ok, that makes sense. In that case it would be fair to allow access for the new report made with OH when I do return to work? My diagnosis was only made final and formal in December. I had thought I was self managing well but it's clear adjustments would benefit me. The only reasonable adjustments I had previously was a phased return to work after my illness.

i meant it *is very toxic

Whenever you have a meeting with line management or similar, take notes either physically or mentally. Afterwards, send a email summarising points etc from the meeting and ask them to add anything you may have missed. This keeps a written record of meetings that they can either agree with or not at the time. If they don't give any corrections to your notes then they can't change things later.
This also gives you a lot of ammo if needed later on...

I'd allow access if it will help them to make adjustments, everywhere is different though and some places will give manager full report ( after employee consents for release) , others the OHA will advise on the recommendations only and not disclose the diagnosis, although it's not hard for managers to guess , eg neurodiversity, from the recommendations. So may as well just share the full report.

I think I would push the performance rating, if you believe that was inaccurate. Even if you are out of time, in most orgs you can continue to dispute it. I have been involved in hearings about the fairness of ratings long after the performance year ended.

Okay, got you. I think the neurodiversity has been pretty obvious. I wasn't aware of how severe it is until the end of my assessment in Dec.

I didn't realise I could do that. In our employee guides on the new rating system it states we have a month to contest the rating and a final decision by line managers is final. It didn't seem right to me, especially I'm on leave.

Thank you, I've contacted them as well.

I totally agree. One manager used to call me for a friendly chat and support. Some were about the team changes, but they denied it in the meeting. In future, I'll be requesting emails over phone calls.

Managers can see previous OH reports and this should be in order to support you as much as they can.
i have seen many previous OH reports of my staff members.
Aldo the advice about requesting a Subject Access Request. This has to be proportionate and they don’t always grant them.
tbh my advice is if it’s so toxic then you should seek employment elsewhere.