Attendance Managementby Kate Russell
In many case you need to get medical advice about an employee’s condition and the prognosis. It’s also essential to have a medical report for an employee if you’re considering dismissing for capability reasons.
Getting clear medical advice can be a real challenge. Doctors are often very protective of their patients and are concerned that you’re trying to dismiss them (it doesn’t help that they’re often given a very subjective and one-sided view by the employee).
The best way to tackle it is to demonstrate that you are interested in taking all reasonable steps to encourage and ensure the employee’s continued attendance at work. List all the things you’ve done to support the employee, ask specific questions relating to the employee’s ill health and, where appropriate, include remarks made by the employee.
A report may indicate that there is an underlying genuine medical condition, which did not originally appear to be the case. If so probe for more information. On the other hand, there have been some cases where the doctor’s report has confirmed that the absentee has not been to the doctor’s surgery for some considerable time, indicating that the absences are not all genuine.
Fitness for work certificates
Fitness for work certificates (known colloquially as ‘fit notes’) allow doctors to state that an employee ‘may be fit for work taking account of the following advice’ (with the focus being on what the employee can do), rather than being able to declare him only ‘fit’ or ‘unfit for all work’ as with sick notes.
The fit note is a computer-generated document which allows an employee’s doctor to provide you with more information on how his condition affects his ability to work.
The changes mean that the doctor can provide advice as to when employees may be fit for work with some support and suggest adjustments to facilitate a return to work. If appropriate, they can also suggest one or more common ways to support an employee’s return to work. This could include
- A phased return to work
- Altered or reduced hours
- Change to duties
- Change to workplace.
This guidance is only advisory. If you are unable to accommodate the employee because there are no light duties, for example, then the employee will have to remain away from the workplace.
There is no longer an option to sign off an employee as fit for work.
The fit note can still be used as evidence for why an employee cannot work due to illness or an injury. Medical evidence of incapacity for work is not required until the eighth consecutive day of sickness absence.
Taking medical advice
If the absences are for a series of apparently unrelated reasons, you are not legally required to take medical evidence, although it would be a sensible idea to do so before considering disciplinary action. The courts would expect you to take medical advice before moving to dismiss an employee. If you take advice, you are expected to act on it (unless the advice is not reasonably achievable).
A medical report should contain only the information required for you to fulfil your legal responsibilities. If the employee has any health condition, you may only need to know:
- Whether the condition constitutes a disability
- Will it impact the ability to perform a defined role
- If reasonable adjustments at work need to be made. For example, details of a chest infection at the time of assessment would be irrelevant to undertaking an office-based role.
Obtaining information about an employee’s health amounts to processing ‘special category’ personal data under the GDPR, and there must be lawful grounds for processing the information.
There are six lawful grounds for processing personal data:
- Legal obligation
- Vital interests
- Public interest task
- Legitimate interests
In addition, your obligations in connection with employment law include not discriminating against a disabled employee, identifying reasonable adjustments, not unfairly dismissing and assessing fitness to return to work.
You need consent from the employee to undergo a medical examination and to consent to the release of the report. However, this agreement must be clearly separated from consent to process the data under GDPR, because consent for that can no longer be relied on.
You can’t force an employee to see a doctor so obtaining consent is key. Generally a doctor would provide a report to the person consulting him or her and this is only released to employers with explicit consent. Patients are in control of all and any information that is released to an employer, and they have the right to review and ask for changes before it is submitted to an employer.
The GDPR holds various principles which the medical report needs to align to, including data minimisation. It means that the information is:
- Adequate – sufficient to properly fulfil your stated purpose
- Relevant – has a rational link to that purpose
- Limited to what is necessary – you do not hold more than you need for that purpose
Access to Medical Reports Act 1988
If you propose to contact the employee’s own doctor or a medical advisor who has been treating him, you will need written permission from the employee to do so. Most companies have an express term in their contracts these days requiring an employee to see an occupational health advisor or medical advisor of the organisation’s choice. Where this is the case, you can require the employee to attend the meeting otherwise he will be in breach of contract.
You may ask the employee for permission to write to his own medical advisor. If so, The Access to Medical Reports Act 1988 (AMRA) applies. AMRA provides employers with a right of access to reports written by medical practitioners who have provided clinical care for an employee. The reports are produced in connection with employment. An employer is under a duty to:
- Establish the state of an employee’s health, including whether the employee is suffering from a physical or mental impairment which might constitute a disability and/or to determine whether there are any reasonable adjustments which the employer could make
- Ascertain a likely timescale within which an employee will return to work following a period of long-term absence
- Consider whether an employee who has taken a substantial amount of short-term intermittent absences is suffering from any underlying medical condition
- Consider whether an employee might qualify to receive benefits under a permanent health insurance (PHI) policy.
You must advise employees of their rights under AMRA at the time that you ask for permission to contact the doctor. This is most easily done by supplying employees with a ‘statement of rights’ summary. Obtain the employee’s written permission of his willingness to allow the employer to contact the doctor and provide a copy of the consent to the doctor when you write with your list of questions.
An employee who has been asked to provide his consent for a medical report from his doctor may
- Withhold consent or
- Consent to the application for the report and agree that it can be sent directly to their employer or
- Consent to the application, but indicate that he wishes to see the report before it is supplied to the employer. (Most employees take this option.)
Where the doctor believes the report might cause serious harm to the employee’s physical or mental health or that of third parties, he or she is not obliged to show the employee any parts of the report. The doctor may not show the employee information concerning third parties without their permission.
As an alternative to gaining medical advice via AMRA you may ask the employee to see your own organisation’s occupational health advisor (OHA).
Note that if there is no such term in your contract, you cannot require him to attend. Where you ask the employee to see your own occupational health advisor, the requirements set out by AMRA don’t apply. However, in order to comply with data protection requirements the OHA must gain a patient’s consent before disclosing information to a third party (and that includes a worker who is being examined only for a medical report). This means that you can end up paying for a medical report which you can’t access if the employee chooses to block the process. While this doesn’t stop you taking steps to complete matters, it is frustrating. In the light of this, it would be wise to create a contractual clause, signed by the employee, which gives consent to the doctor to release the report.
Review and update employment contracts, sickness policies and associated letters – to obtain consent for the examination/release of the report, but not for processing the data.
Ensure the collection of medical information is necessary.
Develop an appropriate policy document explaining how you handle special categories of data.
Refusal of permission to gather medical information
Occasionally, an employee who has been absent for apparent sickness refuses to give permission for you to write to his doctor. If this is the case, explain to him that you need to get the best information you can to help decide about the next steps. Give him a little time to review his original opinion. However, if he continues to refuse, you will note his refusal and make a decision based on the facts available to you.
Conflicting medical reports
Useful guidance on how employers should deal with conflicting medical evidence in disability discrimination cases was provided by the EAT in 2007.
J was employed by as a customer services representative. Her main duties were to ensure that trains arrived and departed safely. A number of these tasks were categorised as ‘safety-critical’ and ‘safety-related’ work. Under the Railways (Safety Critical Work) Regulations 1996, employers must ensure that employees who undertake ‘safety-critical’ work are fit and competent to do so. Failure to comply is a criminal offence.
In 2002, J was involved in a distressing incident at work and sustained a personal injury, leading to a period of extended sickness absence. She tried to return to work but began to suffer from panic attacks. Her condition meant that she was classified as disabled. Throughout her period of absence, her employer obtained medical advice on her fitness to return to work, what adjustments they could make to assist that return and, in particular, whether she was fit and competent to be engaged in ‘safety-related’ and ‘safety-critical’ work.
Ultimately, the company took advice from three different doctors. One consultant psychiatrist was optimistic that J would make a recovery and that she could eventually resume her normal role. Another consultant psychiatrist considered that she had excellent prospects of making a full recovery without any permanent incapacity, suggesting a return to work programme should be instigated as soon as possible. However, a contrasting view came from the company’s occupational health advisor, who disagreed with the reports of both consultant psychiatrists. His advice was that although J was well enough to return to work in a general sense, she should be permanently restricted from undertaking ‘safety-critical’ activities. He also suggested that the company should examine closely whether or not she was suitable for ‘safety-related’ activities.
The employer considered that the occupational health report was crucial and, in particular, they relied on his view that no reasonable adjustments could be made to allow J to continue in her ‘safety-critical’ role. A number of attempts were made to find her alternative work, but none could be found and she was dismissed in January 2006.
J complained of disability-related discrimination, a failure to make reasonable adjustments, and unfair dismissal.
The EAT concluded that the employer was entitled to rely on the report of the occupational health physician and to conclude that there were no reasonable adjustments that could be made to allow J to do ‘safety critical work’. Faced with conflicting medical evidence, the company was entitled to give weight to Dr Bell’s status as an occupational health physician and to prefer his advice, as long as they did not act irrationally or perversely in favouring his opinion over those given by other medical professionals. As a result, the company was entitled to have concluded, on the basis of this advice, that there were no reasonable adjustments that would allow Mrs Jenkins to return to work. Coupled with the fact that they had a substantive reason for dismissing, and that the correct dismissal procedures had been followed, this meant that the dismissal was fair.
This decision emphasises the importance of seeking advice from the right type of medical expert. As an occupational health specialist, Dr Bell was well placed to comment on Mrs Jenkins’s abilities to carry out her previous role and to conclude that there were no adjustments which would facilitate this. It is common in ill-health cases for there to be conflicting advice on the prognosis for an employee’s return to work, and this case reinforces the point that employers can resolve this conflict by preferring one opinion over another, as long as they have reasonable grounds to explain their choice.
Where an employer suspects that an employee is not being strictly truthful about his health, it may investigate the matter and, if appropriate, take disciplinary action based on that investigation.
B had a hip replacement. He was employed as a supervisor and his role was largely sedentary. In May 2008, B was signed off work sick, because he had mobility problems. An occupational health report, provided in June 2008, stated that it was unlikely that B would return to his normal duties in the near future, that there were no adjustments that would be of benefit, and that even a sedentary role was unsustainable. A visit made to B at that time, suggested that he was immobile and in poor health.
In September 2008, another manager saw B moving around with no apparent problems. The company decided to observe his movements. A surveillance company produced two videos, both of which showed B walking to and around the shops with ease, and with no distress or apparent limp. The company took witness statements from two contractors, who both stated that they had seen him walking normally, and even climbing around on top of his camper van.
Although the company obtained a second occupational health report, upon enquiry it discovered that the reports were based on B’s own history of his illness, rather than examinations. B explained at an investigation meeting, that the surveillance company and contractors had seen him on his ‘better days’.
Unconvinced, the company began a disciplinary process. It was not satisfied by B’s explanation and concluded that B was not being truthful about his health and that he was misleading the company by omission. He was dismissed for gross misconduct and complained of unfair dismissal.
The tribunal found that, although his situation had originally appeared one of potential early retirement on health grounds, the company was then presented with evidence inconsistent with that. The company had carefully weighed up all the evidence on both sides and could not reconcile the conflict. While B was capable of doing some work, he had misled the company and undermined its trust in him. The company could not retire B on health grounds, but B had deprived it of information that would have enabled it to offer him some form of other employment. The tribunal held that, aside from keeping B employed indefinitely without sick pay, the company’s only option was dismissal. It found that B had been fairly dismissed.