Guy Hollebon, Partner and Head of the Employment Team, discusses employment and occupational health in the latest article of a series produced by Bevans, solicitors.
An Occupational Health (OH) adviser is a vital tool to employers when managing any form of sickness absence. The majority of SME’s do not have their own in-house OH adviser however it is important that they have access to such a service when dealing with issues of sickness in the workplace. This article will look at some of the situations where a referral to OH should be made and will look at some general considerations that apply to OH advisers.
General considerations
The main question to be asked is whether a medical report should be obtained and this is discussed below. The employee’s consent to undergo a medical assessment must be obtained.
It is advisable that the contract of employment or staff handbook contains a provision where the employee agrees to undergo a medical assessment (usually at the employers expense) and this will avoid a situation where the employee refuses to give consent.
If there is a refusal then the employee should be told clearly that if they are not prepared to give consent the employer will have to make decisions without up to date medical advice and this could lead to dismissal.
Having decided that a report is required the next question is whether it comes from the employees GP or from occupational health. In many cases a report from the treating GP will be sufficient. Care should though be taken as a GP may, by their very nature, not have the specialist knowledge of the employee’s medical complaint to be able to give any detailed prognosis of recovery.
Likewise a GP is unlikely to have a detailed knowledge of workplace issues and how these may affect the medical condition. There is often a feeling held by employers that the GP is likely to be more supportive to the employee rather than offer an independent assessment.
Whether this is the case or not, there is an underlying problem with a GP report which is that GP’s have limited time with each patient and therefore are more likely to be reactive rather than proactive. The effect of this is that a patient who attends their GP complaining of “stress at work” will likely be signed off for “stress at work” as the GP will simply take this at face value.
An OH adviser will be independent, have a detailed knowledge of workplace issues and have the time to investigate the medical complaint.
Having decided on an OH adviser it is next necessary to consider whether any particular specialisms are required. For example, are they experts in mental impairments such as stress or depression? Will they understand a complex cardio-vascular condition?
Once the OH adviser has been identified it is then very important that clear instructions are sent to him/her. The employer should list the particular questions that they want answered. Normally the employer wants to know the diagnosis and the prognosis.
It may also want to know whether there are any reasonable adjustments that could be made such as a return on lighter duties or a phased return to work. The employer should make sure the OH adviser understands the nature of the business and a brief description should be included. It may also be worthwhile inviting the OH adviser to inspect the workplace so they understand the culture and how the work is conducted.
Persistent short-term absence or malingering
Where an employee has frequent intermittent absence this can cause significant disruption to a business. It is important that the situation is managed properly. A full discussion of the way to manage intermittent absence is outside the scope of this article, however an overview of the process will be given.
The first stage in this will be speaking to the employee to discover the reasons for the absence and whether there are any underlying medical or workplace problems. A return to work interview should always be conducted to get this information and also to support the employee’s return from sick leave. Where absence is becoming frequent the employer should discuss this with the employee and make them aware of the impact that their absence has on the business.
If the employer is concerned that there may be an underlying medical condition then consideration should be made to the employee as to whether they should be referred to occupational health. Likewise where an employer suspects malingering by the employee a referral to an independent OH adviser can confirm this. In one case we dealt with, a referral to an OH practitioner had been mentioned. Once the employee realised they had been sprung they said that the referral would not be necessary, as they did not think they would be ill again in the future!
Long-term sickness absence
Where an employee is off sick on a long term basis this can be a potentially fair reason to dismiss. In order that a fair procedure is followed the employer must know the up to date medical position before any decision to dismiss is made. This will involve consulting with the employee to ascertain how they are and will in most cases also involve getting a medical report from the GP or OH.
A medical report which says that the employee is unlikely to return in the near future will be a fair basis on which to dismiss. Consideration should also be given to alternative jobs which might be available.
Where an employer is faced with an employee on long term sick leave the employer should consider whether the employee comes within the definition of disability contained within the Disability Discrimination Act 1995.
This is something that an OH adviser can be asked to comment upon. If they are disabled then they cannot be treated less favourably (dismissal is potentially less favourable treatment) unless this is justified. A justification could be that having obtained an OH report there is no prospect of a return to work in the near future and no adjustments or alternative roles that could be offered.
Conclusion
OH advisers can be a very important part of acting fairly and reasonably when dealing with employees off sick. They will not guarantee a fair dismissal but will go a long way to justifying the actions of an employer. They can also help to make constructive suggestions on how the problem can be resolved swiftly and can help facilitate a return to work.
For further information please contact Guy Hollebon, Partner and Head of the Employment Team at Bevans ([email protected]). Alternatively you can telephone on 0117 923 7249 or visit www.bevans.co.uk.
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