Employee Sickness and Fitness for Work

Overview

This specially commissioned report will show you how to get the best out of your employees, from recruitment to retirement, while protecting yourself and your firm to the full. For a start, you could save yourself a lot of trouble through understanding the law on recruitment. Did you know that you don’t have to accept every doctor’s certificate for sickness absence? Again, were you aware that not all duties are suspended when off sick? The report is packed with constructive advice and ends with seven invaluable Appendices including precedents, model letters and draft company policies.

Contents overview

1 The law on recruitment
2 Assessing health whilst in employment
3 Short-term, persistent absence
4 Long-term or acute sickness absence
5 Work-related illness or injury
6 Disability discrimination – latest law and case study
7 Medical ethics

Content

CHAPTER ONE-THE LAW ON RECRUITMENT

• How do you form a contract?
• Conditional offers
• Medical assessment by non-medical personnel
• What is confidential?
• What do managers need to know?
• The implications of the Disability Discrimination Act 1995
• ‘Lying’ on engagement
• When is a medical examination necessary?
• The purpose of medical assessments
• Assessing fitness for work
• Medical standards
• Legal duty of care
• Breach of human rights?

SUMMARY

CHAPTER TWO – ASSESSING HEALTH WHILST IN EMPLOYMENT

• Health surveillance
• Warnings
• Examinations and assessments when at work and off sick
• Medical reports

SUMMARY

CHAPTER THREE-SHORT-TERM, PERSISTENT ABSCENCE

• Authorised absence
• Categories of sickness absence
• Importance of following fair procedures
• Procedure for short-term, persistent, intermittent absenteeism
• Obtain medical evidence
• Commercial factors
• Warnings
• Dramatically improved attendance
• Unreliability
• Reliability
• Opportunity to appeal
• Fair reason for dismissal – Some Other Substantial Reason (SOSR)
• The nature of absence control policies
• Concern about publishing ‘acceptable levels’
• Customised self certificates
• Genuine absences caused by genuine sicknesses are SOSR
• Appropriate penalties
• Letters to employees
• Status of medical statements (MED 3)
• General guidance to GPs about the giving of medical statements
• MED 3s, MED 5s and MED 6s
• Absence control policy – short-term, intermittent, persistent absenteeism: Communication to staff
• Dealing with the malingerer

SUMMARY

CHAPTER FOUR – LONG-TERM OR ACUTE SICKNESS ABSENCE

• Long-term or chronic sickness cases
• Underlying medical condition
• Obtaining a medical report
• Human rights issues
• Consult the employee and allow an independent report where relevant – this takes the place of warnings
• Consultation is essential in the normal case
• The employer is expected to keep in personal touch
• Not all duties are suspended when off sick
• Employers are not expected to accept a medical report without question
• The role of the medical expert – disability cases
• Failure by a doctor to investigate the nature of the illness
• Occupational Health Adviser versus Specialist
• A third medical opinion
• New medical evidence
• Alternative employment
• Frustration of contract
• Permanent Health Insurance (PHI) terms in a contract
• Compensation reduced for contributory fault
• Absence without permission
• Personal injury claims and PHI
• Waiting for medical reports
• Conduct during sickness absence
• The fraudulent malingerer
• The human rights angle

SUMMARY

CHAPTER FIVE-WORK-RELATED ILLNESS OR INJURY

• Concerns for employers
• Work Related Upper Limb Disorders (WRULDS)
• Duty to warn and train
• Warnings
• What makes an employer guilty of negligence?
• The Court’s views on work-related injuries
• The ‘egg shell skull’ principle
• Some prescribed diseases
• Stress and mental illness
• Alcohol and drug abuse

SUMMARY

CHAPTER SIX – DISABILITY DISCRIMINATION – LATEST LAW AND CASE LAW

• Meaning of ‘disabled’
• How do the tribunals determine whether someone is ‘disabled’ within the means of the Act?
• Employer’s knowledge of the disability
• What do employers need to know?
• Justification in refusing to employ
• What is ‘discrimination’ under the Act ?
• Correct comparison
• Justification defence
• Making reasonable adjustments
• The role of the medical expert
• Some practical advice
• Guidance for a policy

SUMMARY

CHAPTER SEVEN – MEDICAL ETHICS

• Why is the duty of confidence so vital?
• The law and medical ethics
• Regulatory bodies
• Professional codes
• Occupational physicians and nurses
• Confidentiality clauses in contracts/manuals
• What is ‘disclosure’?
• Exceptions to the rule of confidentiality
• Informed consent
• Consent can be ordered by the Courts
• Defining ‘confidential’ information
• Disclosure without informed consent
• Difficult ethical issues
• Unauthorised disclosure can also lead to libel action
• Data protection
• Alcohol and drug testing – the legal implications
• Testing for HIV
• Other forms of testing

SUMMARY

• Useful websites and guidance

APPENDICES

• Appendix 1: Data Protection Act 1998
• Appendix 2: Medical consent form
• Appendix 3: Sickness absence model letters
• Appendix 4: Long-term absence letters and policies
• Appendix 5: Medical questionnaire for WRULDS
• Appendix 6: Alcohol and drug testing policy
• Appendix 7: Draft policy on controlled (illicit) substances
• Appendix 8: Confidentiality clause example
• Appendix 9: List of cases

The author

Gillian Howard is an Employment and Medical Negligence lawyer with twenty years’ experience and the author of numerous publications including Drafting Contracts of Employment (Tolley) and the legal chapters for Fitness for Work – Medical Aspects 3rd edition (The Royal College for Physicians). She is an Honorary Fellow of both the RCP’s Faculty of Occupational Medicine and the Institute of Occupational Medicine in the University of Birmingham. She lectures widely at both public and in-house seminars.