Occupation Health Reports – can employers rely on them when reviewing grounds for misconduct?

Employers are expected to obtain medical reports in a number of situations, often involving absence –  sometimes it’s about poor performance or some form of misconduct. In a recent case the Employer obtained a medical report to ascertain whether an employee had a disability.

In a worrying decision, the Court of Appeal has ruled that an employee may be disabled even though a report from Occupational Health stated that in their opinion, the employee was not disabled.

The case involved a council worker allegedly suffering from a stress related condition – one of the more problematic reasons for absence. The Employer obtained a couple of reports from an external Occupational Health (OH) provider which clearly stated that the employee was not covered by the (then) Disability Discrimination Act. This is now covered by the Equality Act.

So far so good…..

The man had had a number of absences from work, due to stress, often falling ill again soon after returning to work. It was accepted that his stress was work related.

He was eventually dismissed for misconduct following a period of suspension over bullying allegations, and brought various claims to Tribunal, including unfair dismissal, disability discrimination and a failure to make reasonable adjustments.

The Council argued, based on the medical reports, that the man did not have a disability; and therefore, amongst other things, they were not under a duty to make any “reasonable adjustments”.

The Employment Tribunal and The Employment Appeal Tribunal found in favour of the Employer, stating that they were entitled to rely on the content of the independent medical report – which probably reflects what most Employers would have done in the same situation.

However unfortunately for the Employer in this case (and for Employers generally I suggest), The Court of Appeal disagreed and sent the case back for rehearing in Tribunal.

The Appeal Court considered the OH report to be “threadbare”, with no reasoning provided to support its decision. The Court advised Employers to form their own opinion and not to merely follow OH advice without question.

This is a tough decision to be honest!  The Employer was essentially criticised for blindly following independent medical advice.

Guidance Note. Employers sometimes have to make a management decision based on medical information. It is not the Medical Advisors role to make the decision, only to offer advice. Management has to take responsibility for the final decision. In view of this decision, Employers should still obtain Medical advice first, but then objectively review it before making a decision – particularly if that decision is  to dismiss the employee.

It would now also be advisable to ask OH to justify their opinion, particularly when dealing with a suspected disability, which has a statutory rather than a medical definition.

Are your Managers and HR team up to speed with the latest employment law developments?

This case and other important recent decisions are featured in our Employment Law Update one day event.

With Employment Law being a rapidly evolving subject, this Workshop reviews new legislation, recent Court and Tribunal decisions and forthcoming changes in Employment Law in order to emphasise the implications for your business of these key decisions.

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For more information about this topic or on any aspect of Employment Law, feel free to get in touch:

Derek Eccleston MA FCIPD
01789 470700

Is an Employer responsible for incidents outside work and the workplace?

Employees fight after a Christmas Party.

You may think that employees are off-duty come the Christmas Party, but your New Year hangover could be dealing with the aftermath of arguments and worse still, claims of discrimination or harassment.

A Tribunal looked into the case of an employee punching another employee after last year’s Christmas Party, here are some details and 9 points to help you avoid potential problems.

Read on…

Following their Christmas Party, Mr Gimson was walking home with a group of colleagues when he had a disagreement with one and punched another in the face without any provocation, causing serious injury.

The employer followed their disciplinary procedure (correctly – important!), which resulted in Mr Gimson being dismissed on the grounds of gross misconduct. Mr Gimson appealed the dismissal; however the original decision to dismiss was upheld.

Mr Gimson claimed unfair dismissal. He argued that the incident was not misconduct because it happened outside work and therefore outside the employment relationship, and that he received an inconsistent sanction because the other colleagues involved in the incident were not dismissed.

The Tribunal applied guidance from case law to determine the outcome and found:

• that the employer, following a reasonable investigation, had a genuine belief that Mr Gimson assaulted a member of staff after a work event.

They disagreed with Mr Gimson that the incident was not in the course of employment. They agreed that the events after the work Christmas party were sufficiently closely connected to work to have had an impact on the working situation. It was as a result of the work Christmas party that Mr Gimson and some of his colleagues were walking home together.

• The Tribunal decided that the action the Company had taken was fair and reasonable in the circumstances, given that there was no evidence of provocation, neither of the other employees had hit anyone and both were apologetic over the incident. Mr Gimson on the other hand showed no remorse over the incident and attempted to deflect blame on the other parties involved.

It is important for employers to remember that they are vicariously responsible for the actions of their employees if those actions are deemed to have been committed ‘in the course of employment’. This will depend on whether or not there is a clear link between the employment relationship and the off-duty conduct.

One way to look at it is through the “but for” test. “But for” work, would this incident have occurred? It clearly extends “work” into social situations.

Enjoy yourself…but!!!!

A Christmas Party is one way for employers to thank their employees for working hard all year. However, whilst no employer wants to spoil the fun, it is important to remember that managers must remain responsible and ensure their staff do not take the festive spirit too far.

To help avoid potential problems, think about some of the following;

1. Remember that this is a company event, just like any other and you are responsible for every aspect of it, and even perhaps vicariously responsible for the actions of those attending. Consider a limit on “free alcohol” provided by the Employer; perhaps the first drink or wine on the table with the meal.

2. Remind staff beforehand about your Disciplinary Policy and the standards of behaviour that are expected to be maintained at any company events.

3. Circulate your Alcohol and Drug Policy, which should cover matters such as drinking/possessing alcohol at work, and the rules on alcohol or drugs in the workplace. Remind those in safety critical and driving roles that they need to report fit for work the next day!

4. Consider circulating other policies (Bribery?) which cover corporate gifts and entertaining as well as expense claims, (especially if they are MP’s!)

5. Ensure that there are non-alcoholic options available for drivers, non-drinkers and also to cover those who don’t drink for religious or health related reasons.

6. Consider the suitability of any entertainment provided – what can appear ‘funny’ in a party environment could prove to be embarrassing in the New Year, or even offensive to some.

7. Ensure food served is suitable for all those attending and covers vegetarians, food allergies and religious considerations.

8. Consider whether any of the management team need to refrain from drinking alcohol to ‘keep an eye’ on things, and can deal with any issues with a “clear head”.

9. Remind managers that they must uphold company standards.

Merry Christmas Everyone!

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To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700