Inadequate Enquiries

Occupational Health advice is a means by which an employer can seek medical advice from qualified persons (usually a Dr or nurse) on what a medical issue is likely to mean for an employee in respect to their work. For example,  how it the medical condition will affect attendance, how it will impact performance or the ability to perform certain job aspects, and whether there are likely to be any adjustments the that would help both the employer and employee to reduce disadvantage and increase productivity.

To give a typical situation an employee is on long term sickness absence and the employer requests advice to help them make a decision as to the reason for absence, whether it is linked to work, and estimated timescales in which the employee can be expected to be fit to return to work, or, if not, whether ill health retirement is occupational pension scheme that allows this.

In my experience most of the time employers are keen to make a request for advice since it provides independent advice on factors managers are not qualified on that allow them to make informed choices. Push back to the suggestion is more likely to come from employees concerned they need to disclose confidential information, that they are being set up to fail, or that they don’t like the questions that are being proposed. By and large my role has been to convince the employee that the OH referral is also in their as well as their employee’s interests.

However, more recently I have encountered a few occasions in which an employer has been resistant to making an OH advice request. I find this reluctance perplexing as, if nothing else, an OH advice request provides a manager with evidence they are taking an issue seriously and also, if they follow any advice, a likely defense to any future allegations of bad faith decisions and it is hard to think that the reticence is anything other than a penny-pinching measure.

Most reasonable HR sickness or disability policies will recommend that where there are health issues engaged that may affect attendance, performance or discipline then advice should be requested. But aside from potentially being evidence an employee could use in an appeal that an employer did not follow its own guidance the recent decision of  DL Insurance Services Ltd v O’Connor [2018] UKEAT 0230_17_2302 also shows  that when a disability is involved it can be useful evidence in a discrimination arising from disability  claim.

In O’Connor the claimant was absent for 65 days in a calendar year, understandably this level of absence was a concern for the employer. The employer’s policy required that before a decision on whether to issue a warning was taken the employer should either obtain medical advice from the GP or seek OH advice. The employer issued the warning but did not seek any advice from OH before doing so and this failure to follow the employer’s own policy was a key factor in its determination that the issue of a warning amounted to discrimination arising from disability.

On appeal the EAT did make clear that there is no checklist in operation and that a failure to follow a policy will not always lead to a finding of discrimination:

In my judgment, the correct summary of the ET’s reasoning in relation to the procedural failure is that the ET were not saying that the Respondent had failed to show the treatment was a proportionate way of achieving a legitimate aim because it breached its Policy. Rather, what the ET were saying was that the Respondent could not show that the treatment was a proportionate means of achieving a legitimate aim because the Respondent has not produced specific evidence to show that, and that that failure to produce specific evidence might have been because it breached its Policy.

The EAT went on to consider, as the ET had done previously, paragraph 5.12 of the EHRC Employment Code, which says that in showing that the treatment was a proportionate means of achieving a legitimate aim

It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.

For the ET, and affirmed by the EAT, it was not so much the fact that the employer had failed to follow its policy that rendered the employer’s actions disproportionate but that there was no specific enquiries and just reliance on generalisations. This failure meant possible adjustments or other solutions were simply not explored.

O’Connor does strike me as a useful case to use to remind employers that knee-jerk resorts to warnings without serious examination of alternatives can result in findings against employers of discriminatory conduct.