OH, OH, OH, I Don’t Feel So Well.

Everyone gets unwell from time to time, but persistent short-term absence and long-term absence can cause real problems in the workplace. You employ individual members of staff for a good reason and when they’re not there, the carefully oiled and calibrated machine which is your organisation is liable to seize up.

After a while you may have a situation up with which you cannot put (to misquote something Churchill probably never said), but it’s not simply a matter of getting rid of the absent employee and replacing them with another. Although capability (in this case incapability due to ill-health) is one of the potentially fair reasons for dismissal, case law has held that when dealing with sickness absence, “sympathy, understanding and compassion” is the order of the day. And of course, you may have a duty to make reasonable adjustments if the employee is disabled under the Equality Act 2010.

In the first instance and amongst other things, you’ll need to ascertain the nature of the employee’s illness, the prospects of the employee returning to work and the likelihood of the recurrence of the illness. In order to do so, you will need to obtain an up-to-date medical opinion and this is commonly done by obtaining an occupational health (OH) report. But as any decision made by the employer (to dismiss or otherwise) is a managerial one, not a medical one, how far can you rely on the report?

In the recent case of Gallop v Newport City Council, the Court of Appeal held that it is no defence to a disability discrimination claim to ‘unquestioningly’ accept the opinion of an OH practitioner that an employee is not disabled. Although at the end of the day only an Employment Tribunal can determine whether an employee is disabled, a reasonable employer must make up its own mind on this issue based on the facts presented to it.

Top tip this week is therefore to ask an OH adviser a series of specific questions focussed on the particular circumstances of the employee’s medical condition. The OH response will then help the employer decide whether it considers the employee to be disabled. Without doing so, an employer could never assert ignorance (on the basis that it did not know and could not reasonably have been expected to know that an employee is disabled).

And once you have that report, do remember that consulting with the employee must be your next step. They must have the opportunity to comment, suggest and challenge the report and your proposed reaction to its content. In the absence of consultation, the success of a claim for unfair dismissal and possibly disability discrimination will be almost guaranteed.

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