We are currently considering dismissing an employee who is absent from work on grounds of ill health. However, we have received conflicting medical advice in relation to his absence. His GP is saying he is not fit to return to work. However, the company doctor has said he is fit to return to work but has suggested that we obtain a psychiatric report. How do we handle it?

Ciara Fulton writes:


It is the responsibility of the Employer (rather than the employee) to ascertain the true medical position before deciding whether to dismiss an employee. This will mean seeking up-to-date information about the nature of the illness and the likely length of absence or prognosis. If the medical evidence is ambiguous or conflicts, the employer should seek clarification and follow up on recommendations made therein, as far as they reasonably can.

Case Law

• For an example of a case in which a dismissal was held to be unfair because medical evidence was unclear see Crampton v Dacorum Motors Ltd [1975] IRLR 168, in which the Tribunal held that a dismissal on the strength of a GP’s opinion alone was unfair. Whilst the employer made informal enquiries as to the nature of an employee’s angina condition following receipt of a GP’s report, a specialist examination would have been reasonable in the circumstances.
• See also Mitchell v Arkwood Plastics (Engineering) Ltd [1993] ICR 47 in which it was held that the employment tribunal had erred when it found a dismissal fair on the basis that the employee had failed to volunteer a medical prognosis.
• Where the employer obtains more than one medical opinion and the two opinions conflict, an employer should take steps to resolve this conflict, by obtaining a third report or by seeking further clarification.
• A case in point is the case of British Gas plc. v Breeze EAT/503/87 in which the employer’s medical adviser’s opinion (that the employee was unfit for work) conflicted with the employee’s GP’s opinion (that the employee was fit for work and could therefore return). The employer’s medical advisor suggested that the employee be referred to a specialist orthopaedic surgeon which the employer did not avail of. The employee was dismissed on the employer’s medical advisor’s advice. This was held to be unfair. The EAT held that the employer reached a decision “which no reasonable employer could” as they failed to consider all the evidence they needed before making a dismissal decision.
• However, there may be cases where an employer is entitled to prefer the opinion of one expert over another, provided it can show that it acted reasonably in doing so.
• In the case of Heathrow Express Operating Company Limited v Jenkins unreported, 9 February 2007, EAT 307, 317 the EAT held that an employment tribunal was not entitled to substitute its views for that of the employer when reviewing medical advice which the employer relies on to justify the dismissal of its employee. The employment tribunal’s function was limited to reviewing the employer’s decision (similar to the “band of reasonable responses” test). Provided an employer has carried out a reasonable investigation, their assessment will not be analysed by a tribunal.
  
  

In addition see Schenker Rail (UK) v Doolan UK EAT 2011/0053/09/1304. In that case the employer had been entitled to prefer the opinion of an occupational psychologist over that of a doctor, on the basis that the former had a better understanding of the nature of the employee's role.

Recommendation


Therefore, we would recommend that the employer arranges for the employee to be examined by a psychiatric specialist as recommended by the company doctor before any decision is taken in this matter. This should hopefully resolve the conflict between the two opinions and the specialist will provide an independent opinion.

If the specialist agrees with the company doctor that the employee is fit to return to work and the employee fails or refuses to return to work following consideration of that medical opinion, this may amount to unauthorised absence. If, on the other hand, the specialist agrees with the GP that the employee is not fit to return to work, the employer may need to consider dismissal on grounds of capability.
Before any decision is taken regarding dismissal, the employer should consider whether the illness amounts to a disability and, if so, whether any reasonable adjustments can be made to facilitate the employee’s return to work. If the illness does not amount to a disability or there are no reasonable adjustments will enable the employee to return to work, the employer should also consider whether there are any alternatives to dismissal such as redeployment to an alternative position or ill health retirement.
Ultimately, the employer must consult with the employee before making any final decision rather than relying solely on the medical opinion. In the case of East Lindsey District Council v Daubney [1977] ICR 566, the fact that the employee had not been consulted rendered the dismissal unfair.

The Tribunal Stated:

“Unless there are wholly exceptional circumstances, before an employee is dismissed on the grounds of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps be taken by the employer to discover the true medical position.”

In this jurisdiction, an employer is required to follow the Statutory Dispute Resolution Procedures prior to taking any decision to dismiss. Otherwise, the dismissal will be deemed to be automatically unfair.

Accordingly, once dismissal is contemplated, the employer must write to employee to invite them to a meeting. The employee must be given sufficient information about the circumstances that will be taken into account and the possible outcomes, to enable the employee to respond meaningfully.

Any subsequent decision to dismiss must be confirmed to the employee in writing and the employee must be allowed an opportunity to appeal the decision. If the employee appeals, an appeal meeting should be arranged and the outcome confirmed in writing to the employee. This decision will usually be final.

This is a particularly complex area and one in which each case will turn on its own facts. Therefore, it would be prudent to consider each new development carefully and take advice as appropriate at each stage.