Many employers have a formal capability and/or absence management process which they follow if an employee if off sick for long periods of time, or where an employee’s short persistent absence has started to become an issue.
However, many employers overlook the importance of obtaining medical evidence before commencing a formal process.
Issues which can arise due to absence
Problems can arise where an employee is off long term or has short persistent absence for the same reason. The reason for this is that the employee may have a disability under the Equality Act 2010, and if they do, then you are under a duty to make reasonable adjustments.
Further, if the formal process results in the employee’s dismissal, and you have not sought medical evidence, then there is a risk if the employee pursues a claim in the Employment Tribunal for disability discrimination.
For this reason, if an employee has a health condition which causes them to be absent from work, we recommended that you obtain a medical report.
Often employers will say things like “well the employee hasn’t informed me they have a disability, therefore, how can they claim they were discriminated against”. Whilst this argument seems reasonable, you have a duty of care to your employees’ and if they are absent from work due to a recurring condition, then you really should try and gain a better understanding of that condition.
The other concern for employers is that any absence which relates to a disability should be discounted for the purposes of a capability procedure. If you are unaware that the condition is a disability, then you could be including absences which should be discounted, which could result in the process being unfair and the employee having a claim for disability discrimination.
As medical data is classed as special category data under GDPR, you are required to obtain your employees express written consent. This means that the employee needs to be notified of the request, the reasons for the request and the lawful basis for making the request.
They also need to be informed of their options in respect of the report such as do they want to see the report before it is released to you or are they happy to disclose the report to you straight away.
Most employers have a clause within their employee’s contracts which states that they will consent to a request for a medical report, however, you still have to provide them with the above information despite this clause being in their contract.
If the employee refuses to consent then you could consider taking action for them refusing a reasonable management instruction, but I would advise that you only take this course of action where the employee is behaving extremely unreasonable.
There are two types of report you can obtain
- GP report; or
- Occupational Health Report
Deciding which medical report to obtain
I would usually recommend employers obtain an occupational health report. Whilst an occupational health report is likely to cost you more money, it is likely to provide you with more information about whether the condition is likely to be classed as a disability, when the employee can return to work, whether further absences are likely and what, if any, reasonable adjustments need to be made.
Depending on the occupational health provider you use it can also be quicker to obtain than a letter or report from the employee’s doctor.
Duty to make reasonable adjustments
The important thing to remember is that you only legally need to make reasonable adjustment, where an employee has a disability under the Equality Act 2010. However, even where an employee’s condition is not classed as a disability, I would recommend you consider if any adjustments could be implemented to assist the employee.
What is reasonable, will depend on the size of the organisation and its resources. If you are unable to accommodate an adjustment, then provided you can justify this and explain it to the employee, then you will have satisfied your obligations. If a dispute arises in respect of a particular adjustment, for instance, if an employee argues that an adjustment could be made, I advise that you try and reach a compromise wherever possible. However, in some situations this will not be possible, and for this reason, I recommend you keep records of all discussions to ensure you can demonstrate your position clearly.
Once you receive the report
Once you have received the report, it is important to consider it and review the adjustments which are recommend, if any, then arrange a meeting with the employee to discuss the medical report.
It is important to obtain their view on the report, even if they have seen the report and disclosed it to you. Do not assume this means they agree with the report!
The purpose of the discussion is to obtain the employee’s views on the report as well as to discuss the adjustments.
Depending on the outcome of the report, it may be appropriate to implement a capability procedure and the risk of a claim will be minimised as you have based your decision of the medical evidence available.
The Employment Tribunal will expect you to have obtained medical evidence, and if you have not then this is where issues can arise.
If you have any queries or are having issues with employee absence, then I would recommend you seek independent legal advice.