Occupational Health is not a dispute mediation service
XpertHR published an absence related employment tribunal case study (Beastall v Ministry of Defence ET/2404242/14) to do with an employee who fraudulently used sick leave to perform as a medium. He had been signed off on two separate occasions and it was found that during both episodes he had appeared publicly as an advertised medium. When he didn’t return to work as planned after his fit note ran out, he was suspended under investigation and later dismissed for gross misconduct.
Occupational Health can’t assess past absences
One of the arguments made by the employee in his defence was that his employer should have sought Occupational Health (OH) advice, which they didn’t do. According to XpertHR, the tribunal held that the employer had taken a reasonable stance in not getting OH advice. OH departments are able to provide a current opinion as to an employee’s capacity to work and a forecast of what adjustments might be needed. It is much harder for occupational health departments to conduct a forensic exercise to assess whether or not an employee was telling the truth about previous sickness absence.
The tribunal accepted that OH departments are often involved in the disciplinary process. For example, they often advise on fitness to attend a disciplinary hearing or on whether or not proceedings ought to be conducted in some other way. However, this does not mean that the employer in this case was obliged to seek OH advice on the substantive misconduct allegation.
Using sick leave as an escape
This brought me to think about another similar topic. It is not uncommon that employees who are not happy with their work situation eventually decide to go off sick. It is easy enough to go to your GP, who on average has 9 minutes to devote to each patient, and get signed off due to stress or anxiety. Of course, most employees would never use the stress card disingenuously but for the minority who don’t have such scruples, it is an easy escape. The employee may even feel genuinely stressed by the situation and perhaps mistreated by their employer. If the reason for stress originates from the workplace, however, it is unlikely to go away by hiding your head in a bush at home and the only way to find a solution is to confront the root cause with the employer.
Each side of the story, both the employee’s and the employer’s, varies from one situation to the next and it is not the intention here to suggest that employees are always to blame. Undoubtedly there are many cases where an unreasonable manager or colleague has made the employee so uncomfortable at work that they can’t face going in. In those cases, too, the time off sick is only a temporary measure that doesn’t actually fix the issue.
OH used as a pawn in the game
So we arrive at a stalemate. There is a problem at work that the employee is unwilling to face. Most employers respond by calling in the cavalry – Occupational Health. To be sure to minimise risk of litigation, medical opinion is sought to verify if the employee is really ill and whether they are fit enough to attend meetings. Often, the referrer’s expectation on what the OH Physician or Advisor can reveal is unrealistic. They may suspect that the employee is lying about their illness or not telling the real reason for getting signed off. In best cases, OH works as a go-between to help mediate the real issues. In worst cases, the clinician simply becomes a pawn in the game of allegations from both sides wanting to get their interpretation of events validated to further their own agenda.
OH assessments can be a great help to find ways to bring employees back to work from long term absence sooner or even to prevent the absence from becoming long term in the first place. As the NHS, too, states, “when their health condition permits, people who are sick or disabled should remain in or return to work as soon as possible because it’s therapeutic, helps to promote recovery and rehabilitation, and reduces the risk of long-term incapacity.” The place of OH in supporting primary care to achieve these quicker returns to work is invaluable and should be used as a matter of course.
Facing a dispute head on takes guts
When it comes to disputes at work, the OH report often reveals nothing new. A doctor will not resolve the stalemate because the problem is not medical in the first place. Yes, they can advise whether a disciplinary hearing is appropriate, like stated by the tribunal outcome, but a real solution can only be found through mediation and constructive communication between the two sides. Employers tread carefully which usually means doing very little and sadly the end result is often termination of employment at some stage further along the line. A braver company might involve a mediation service instead or in addition to Occupational Health and get more positive results!