During our recent webinar on Managing Sickness Absence, we received a number of questions that we will address in a few blogs over the next few days.
First off, a question on obtaining medical advice for employees who have been absent from work due to sickness.
For long-term absences, whose advice should be followed – a company doctor, OH or the employee’s GP?
Obtaining up-to-date and relevant medical advice is key when managing employees who are absent from work due to sickness, especially long-term sickness. There are, however, no rules as to whose advice you have to follow – the most important thing is just that you obtain it. Who gives that advice may differ depending on whether you have a company doctor/OH support, the nature of the illness (e.g. whether you might need advice from a specialist), the purpose of the report, etc. In particular, do you want to understand what the employee is suffering from (a medical assessment) or, if that is tolerably clear, what adjustments can be suggested to square the requirements of the role with the limitations imposed by that complaint (an Occupational Health assessment)?
Usually the starting point is to refer the employee to the company’s own OH advisers or company doctor to obtain information on the employee’s health and their current and prospective fitness to return to work. They in turn might seek further information from the employee’s own GP depending on the nature of the illness, previous medical history, etc. OH are the ones who should know your workplace best and they are usually best positioned to advise on appropriate adjustments to support an employee back to work.
When obtaining medical reports for employment purposes, employers should not forget their obligations under the Access to Medical Reports Act 1988 (AMRA). AMRA gives individuals a right of access to medical reports relating to them. Whilst a report obtained by an OH adviser is unlikely to be subject to the provisions of the Act (because the OH adviser is not responsible for the clinical care of the employee) the Act may apply if, for example, that adviser then requests a report from the employee’s GP.
What should you do if different medical advisers disagree – whose advice do you follow? Employers are not expected to be or become experts able to review and assess the advice of different medical advisers. They will generally be entitled to go with their own medical evidence, assuming it is relevant and up to date. However, Tribunals expect employers to act reasonably. This is likely to mean that if, for example, the advice of an employee’s GP differs from that of your own company doctor/OH in some material respect, you may need to go back to your own medical advisers and ask them to consider the GP’s advice to see whether it changes their position. If it does not, you are generally entitled to go with your own medical evidence. Sometimes it may be appropriate to seek a third opinion, but this will be rare.
But though there may be some differences in medical opinion, remember that the issue for the employer is the practical impact of the condition on the employee’s ability to do their job, and that it is the employer, not any medical adviser, which decides what adjustments are reasonable and what just won’t work. It is that decision it will need to be able to defend, not a precise medical diagnosis.
Our OH team say there are no disability issues in a particular case, but that “it is a legal decision, not a medical one”. What does this mean?
Many employers turn to their own OH advisers when seeking to determine whether an employee is disabled for the purposes of the Equality Act 2010. This is indeed the recommended approach and what Employment Tribunals will expect employers to do.
At the same time, the courts have made it very clear that it is the employer that remains responsible for deciding whether an employee is disabled – and this is ultimately a legal question, not a medical one. Medical advice will, however, play an important role in determining whether the employee’s condition satisfies the legal test for a disability. If the medical view is that the employee is probably disabled, it will take a brave employer to disregard that. By contrast, if the medical view is that the employee is not disabled, it is also a brave employer which takes that at face value – have a look at Gallop v Newport City Council here for a more detailed commentary on just how wrong one can go in that respect.
It is therefore very important that employers ask the right questions of their OH advisers. Employers should not, for example, be asking in general terms “Is X disabled for the purposes of the Equality Act?”. Instead, they should be posing specific practical questions directed to the employee’s particular circumstances and the definition of disability in the legislation. For example, “what impact do you consider X’s condition has upon his ability to carry out day-to-day activities outside the workplace?” and “What is the expected duration of X’s incapacity?”. This will then help them reach a decision as to whether the employee is likely to satisfy the legal definition of a disability.
It is tempting to see sickness management as a binary disabled -v- not disabled question, but of course there is considerable overlap between a disabled employee and one who just has an unsatisfactory absence record. Even if the medical view is clear that the employee is not disabled, keep in mind (a) that view could be wrong and (b) the unfair dismissal regime requires a reasonable level of attention to how the sickness can be accommodated anyway, so obtaining that advice is rarely wasted.
