As the first stage of a fair sickness absence procedure, it is essential for employers to consult with employees about their sickness absence record as soon as this gives cause for concern. The purpose of this discussion is twofold: to let the employee know that his or her absence record is being reviewed, and to enable the employer to discover the reasons for it. Consultation also gives the employer an opportunity to alert the employee to the possibility that his or her future employment may be at risk if his or her sickness absence record does not improve.
If there are underlying reasons for the sickness absence that the company can control, this gives it an opportunity to deal with them. For example, if the employee reveals that his or her absence is due to stress caused by harassment or bullying, then the company will need to take steps to address that issue. If the harassment is on one of the grounds covered by the discrimination legislation, the employee could allege unlawful discrimination. If no action is taken to deal with the harassment, the employee could resign and claim unfair constructive dismissal.
All workers have the right to be accompanied by a work colleague or trade union official of their choice at a disciplinary hearing, if they reasonably request this. This right is discussed elsewhere in this Guide (holding a disciplinary hearing). For these purposes, a disciplinary hearing is defined as a hearing that could result in the employer giving the worker a warning or taking some other action in relation to him or her. A worker will not, therefore, have the right to be accompanied at any interview to discuss his or her sickness absence unless the interview could result in the issuing of a warning that forms part of the employee's disciplinary record, or the imposition of some other form of disciplinary sanction. Companies may nevertheless wish, as a matter of good practice, to allow an employee to be accompanied at this type of interview, if he or she requests this.
In its discussions with the employee, the company should mention that it will be asking for the employee's consent to obtain medical information on his or her condition. An employer that dismisses an employee without having an adequate picture of his or her current condition and likely prognosis is very unlikely to be acting reasonably. A company will therefore need to obtain information on the effect that the employee's condition is having, and is likely to have, on his or her ability to work. Medical evidence may also be useful when a company is deciding whether any reasonable adjustments could be made to enable a disabled employee to return to work.
Medical information can be obtained from the employee's own GP or specialist, or the company may decide to ask its in-house occupational health physician or an independent doctor to examine the employee and prepare a report.
It is important to remember that the role of medical evidence is to inform the company's decision making, rather than substitute for it. A doctor's opinion on whether an employee is fit to return to work is only one factor that the company will need to take into account when deciding how to manage the employee's case. Likewise, the question of whether an employee is disabled within the definition of the Disability Discrimination Act 1995 is a question of fact, and a doctor's view on this is not conclusive. While a doctor may be able to give valuable input on possible adjustments for a disabled employee, whether a particular adjustment is reasonable in all the circumstances is an assessment for the company to make.
Where an employee is dismissed for intermittent absences, an employment tribunal may be prepared to accept that there was no need for the employer to obtain medical evidence if the employee had had a series of unrelated short-term absences of a day or two here. This is because a doctor is unlikely to be able to provide useful information on the causes of these intermittent absences. It may therefore be fair for a company to dismiss an employee with a history of intermittent, short-term absences if it has:
- consulted with the employee about his or her attendance record; and
- given him or her an opportunity to improve it; and
- cautioned the employee about the consequences if attendance does not return to an acceptable level.
In the context of disability discrimination, however, an employer can be liable for discrimination if it dismisses an employee for a reason relating to the employee's disability even if it is not aware that the individual is disabled. It is also under a duty to make reasonable adjustments for an employee if it either knows or could reasonably be expected to know that the employee is disabled. Therefore, in practice, it is always worth obtaining medical evidence, to ensure that an employee with a record of intermittent absences does not have an underlying condition that may amount to a disability, such as clinical depression or a back injury.
A company cannot obtain medical information about an employee, or require an employee to undergo a medical examination, unless the employee consents. An employee is entitled to refuse consent. The company then has no alternative but to make a decision on the basis of the information that it does have. This should be made clear to an employee who is inclined to refuse consent, but without pressurising him or her.
If the company wants to obtain medical information from any doctor who is, or has been, responsible for the clinical care of the employee, such as a GP or consultant, it must meet the detailed requirements of the Access to Medical Reports Act 1988. This means that the employee must be notified in writing that a report is to be requested and must supply written consent to it being obtained.
When writing to the employee for consent, the company must also inform the employee that he or she has the following rights:
- to withhold consent to the company applying for the report;
- to have access to the report before it is supplied, and for six months after it is supplied;
- to ask the doctor to amend the report before it is supplied; and
- to withhold consent to the report being supplied after the employee has seen it.
The letter must also explain that in some circumstances, explained below, the doctor may not be obliged to give the employee access to all or part of the report.
If the employee gives consent to the company obtaining the report, the company can then write to the doctor requesting it. The letter to the doctor should confirm that the employee has given written consent to the report being requested. If the employee has said that he or she wants access to the report, the company must let the doctor know this when it applies for the report, as well as letting the employee know in writing that the report has been requested.
The employee then has 21 days in which to contact the doctor to make arrangements to see the report. If the employee does not contact the doctor by then, the doctor can supply the report to the company without the employee seeing it. Even if the employee did not originally say that he or she wanted access, he or she can contact the doctor to ask to see the report before it is supplied, and then has 21 days to make the necessary arrangements.
The doctor need not give the employee access to any part of the report that the doctor believes would be likely to:
- cause serious harm to the physical or mental health of the employee or others, or would reveal the doctor's 'intentions' in respect of the employee;
- access to any part of the report that would reveal information about another person;
- if it reveals the identity of someone who has supplied the doctor with information about the employee, unless that other person has consented, or he or she is a health professional who has been involved in the care of the employee and the information was provided in that professional capacity.
If part of the report is withheld from the employee, the doctor must let the employee know. If the whole of the report is withheld, the doctor must let the employee know, and must not supply the report to the company unless the employee has given written consent.
If, on reading the report, the employee believes it to be incorrect or misleading, he or she can write to the doctor and ask for an amendment. If the doctor refuses to amend the report, the employee can ask for a statement to be attached to the report reflecting the employee's views. Once the employee has had access to the report, the doctor cannot forward it to the company until the employee gives written consent. Therefore an employee who is not happy with the report can prevent it being supplied to the company.
The Access to Medical Reports Act does not apply to reports from doctors who have not had clinical care of an employee. 'Care' here includes examining, investigating or diagnosing the employee in connection with any form of medical treatment. Therefore the Act would not apply to reports from independent doctors who are asked to examine the employee and prepare a report on behalf of the company. Nor would it apply to reports prepared by in-house occupational health physicians, unless they have had care of the employee.
In order to obtain useful medical information, the company should be specific about what it needs to know and supply the doctor with relevant contextual information. When it contacts the doctor, the company should:
- explain that it is reviewing the employee's sickness absence record;
- ask for the doctor's view on whether the employee is fit to do his or her current job;
- give the doctor a summary of the employee's duties and the physical environment in which they are performed;
- if the employee is not currently fit to do his or her job, ask the doctor when the employee will be fit to do it, and whether the doctor considers that any reasonable adjustments could be made to the job or the context in which it is carried out that would enable the employee to return to work;
- if the employee is not fit to do his or her job now or in the immediate future, ask the doctor whether the employee is now or may be fit to do any other work that the employer has available; and
- give the doctor a summary of the duties of alternative posts that might be available.
Once the medical report has been received, the company will need to assess whether it gives sufficient information to make an informed decision on the employee's future employment. The report may not address the points that the company has asked it to address or it may be unclear. If so, the company may need to go back to the doctor for further information or clarification.
Where medical evidence is obtained from more than one source and it conflicts, the company is entitled to rely on the evidence that it believes to be the most credible, provided it has reasonable grounds for that belief. For example, if the company has obtained a report from an employee's GP and from its in-house occupational health physician, it may prefer the occupational health report because that doctor has a better idea of what is involved in the job and the type of working environment in which it is performed.
It is important for the company to discuss the medical evidence with the employee, to ensure that any comments that the employee has about its accuracy are taken into account.
The medical evidence may indicate that although the employee is not fit for his or her job as it currently stands, he or she may be able to do some form of work. The company will then need to consider, in consultation with the employee, whether alteration of the employee's job duties or redeployment is an option.
This is particularly important if the employee is disabled within the meaning of the Disability Discrimination Act 1995, in the light of the employer's duty under that Act to consider reasonable adjustments for disabled employees. The Code of Practice that gives guidance on avoiding disability discrimination suggests:
'A newly disabled employee is likely to need time to readjust. For example, an employer might allow: a trial period to assess whether the employee is able to cope with the current job, or a new one; the employee initially to work from home; a gradual build-up to full time hours... additional job coaching may be necessary to enable a disabled person to take on a new job.'
If no reasonable adjustment would enable the disabled employee to stay in his or her job, the Code states that it might be justifiable to move the employee to another job, even if that post is lower-paid. According to the Code:
'It would be reasonable for an employer to have to spend at least as much on an adjustment to enable the retention of a disabled person - including any retraining - as might be spent on recruiting and training a replacement'.
In some cases, the medical information will confirm that the employee is unlikely to return to work within a reasonable time, or will not be well enough in the foreseeable future to maintain a satisfactory attendance record. It may not be feasible to allow the employee to return to amended or alternative duties, even with reasonable adjustments. The company will therefore need to decide whether it can wait any longer for the employee to return to work, or for the employee's attendance record to improve, or whether it should consider dismissing the employee.
In its delibarations, the company will need to take into account all the relevant circumstances, including the length of the employee's absence from work and the organisational and financial impact that the employee's absence is having on the business. If, for example, the employee has a chronic condition with an uncertain prognosis and the company is having difficulty covering for his or her absences, it may be reasonable to dismiss. On the other hand, if the employee has been absent for an extended period but the company has established satisfactory cover arrangements and the employee is likely to be fit to return in the next few weeks, it is likely to be unreasonable to dismiss. Also where the employer provides an enhanced pension on retirement through ill health, the employer will be expected to take reasonable steps to ascertain in long term sickness cases whether the employee is entitled to the benefit from ill health retirement before proceeding to dismiss the employee.The decision is a managerial, not a medical, one.
In any event, before deciding to dismiss, the employer must comply with the statutory minimum dismissal procedure ( minimum dismissal procedures ). This means that the employer must write to the employee explaining that it is contemplating dismissing the employee because of his or her sickness absence record and invite the employee to attend a meeting to discuss this. At the meeting, the employee has the right to be accompanied (right to be accompanied ). After the meeting, the employer must notify the employee whether it has decided to dismiss and confirm that he or she has the right to appeal.
If the employee is covered by the EEF national procedural agreements, he or she is entitled to call for an external conference and to remain in employment until agreement is reached or the procedure is exhausted or his or her notice expires, if that is later.
If the employer decides to dismiss, it should give the employee whatever notice of dismissal he or she is entitled to under his or her contract (minimum notice periods ) and ensure that the employee is paid any other benefits to which he or she is entitled, such as accrued holiday pay. An employee who is dismissed or resigns with notice while on sick leave may have the right to be paid his or her usual pay during the period of notice, even if that falls during a time when he or she would otherwise have received less than full pay, or no pay at all. Employees have this right if they are entitled to no more than six days more than the minimum notice of dismissal required by the Employment Rights Act 1996 ( (minimum notice periods - the minimum notice that the employer has to give is, broadly speaking, one week for each year that the employee has been employed in the company, up to a maximum of 12 weeks).
The company may prefer to dismiss the employee with immediate effect. In that case, it should ensure that it makes the employee a payment in lieu of notice (payment in lieu of notice ) that fully reflects the pay and other benefits the employee would have received during his or her notice period.