fit for work who decides: the legal answer

sheena farenden
Member - 71 posts

My understanding is that an employee must be signed off as fit for work and that the procedure you are using is actually coercing an employee to commit fraud if they are still claiming incapacity benefit. If the GP is signing them of sick then they are sick and not fit for work in any capacity.

Tony Williams
Member - 29 posts

Insurance policies 'do what they say on the tin', so you should ask the insurer not HR. Insurers are unlikely to cover employees who would be danger to themselves or others if they returned to work. In practice, this is extremely rare. Most inviduals will not be harmed if they return to work while still unwell; if we had to wait until employees were fully fit before they returned to work, around 75% of the population would be off sick. So when you are advised that the insurance policy will not allow individuals to return this advice is generally wrong.

It is good practice to allow employees to come back on a phased return or rehabilitation programme while they are recovering. The whole emphasis of the government approach now is to encourage this, to get people back to work rather than remain off sick or on benefits.

The legal position is simple; people have a right to work, and the employer can only prevent them from working if there are clear and justifiable medical grounds for doing so. Furthermore, if they meet the criteria for a 'disability' under the DDA, employers have a duty to make adjustments which can include allowing a phased return to work, or a return on adjusted duties.

It is also important to understand what a Med 3 'sick note' is. It is for statutory sick purposes only. The majority of GPs will give someone a sick note if they are asked, so the sick note simply means that the individual does not feel well enough to work or does not want to work. Most GPs do not question the patient, arguing that this either leads to conflict that puts the GP at risk, or that it damages the doctor-patient relationship. Furthermore, GPs are not trained in occupational health, so in many cases they haven't a clue whether the patient is fit for work or not and often 'play it safe' and advise them not to work.

Most GPs regard sick notes as completely pointless; this was the conclusion of the recent Black report which recommended 'well notes' although these, too, are likely to be based on what the patient says and what the patient wants rather than their capability. If you want an independent opinion based on evidence, you are advised to seek an occupational health opinion.

Martin Brewer - Mills & Reeve
Online advisor - 87 posts

In the end if your insurer is happy then that's what matters. The key thing to remember is that it will often be the case that the employee becomes fit before the expiry of the sick note, after all how often can the disappearance of the sickness actually coincide with the expiry of the sick note? If that's the case then the employee should have no difficulty getting signed back to work but that's not always convenient particularly if it takes a week to get a docotr's appointment. In such cases, whilst it is of course good practice to get the employee signed as fit to work, if you can't then you may want to carry out a risk assessment just to satisfy yourself that the employee is fit and do get your insurer's express agreement in each case.

James Fairchild
Member - 296 posts

Do be aware that there is only so much medical training that a typical company manager has, and getting an Occupational Health advisor to make this decision for you may well be better.

cathy tye
Member - 6 posts

Hi All,

The key point is medical certificates are for proving to the employer if they pay SSP or the DWP that that person is incapable or unfit for work. Over the years they have become more abused and doctors precious appointments wasted 'signing people back to work.' HR personnel should know better.

There may be specific circumstances where working with the GP may be appropriate due to complex health issues or because of workers employed within driving or other high-risk roles where medication for example may affect their ability to carry out their role. However, you are making an assumption that the GP can make an informed decision. Remember most doctors have never been inside an industrial setting and can only go on what the employee tells them (in 8 minutes or less!)

If you have an OH team then they can decide whether an employee is fit to work or not and whether any temporary adjustments are required and rarely, liase with the GP or specialist if required. If you don't have OH provision then you can approach OH providers and pay for one-off assessments and advice from a competent OH nurse or doctor for staff with complex health issues.

Failing that, H&S legislation (MHSWR) requires the employer to complete a risk assessment for 'vulnerable' employees. Staff returning from long-term sick come under this category. Best practise is for the manager to complete a return to work interview, welcome the employee back and identify whether the employee feels their health condition or problem would be aggravated by any aspects of their work (as they are the expert in their condition and job role) and agree with the manager (who will know exactly what their job role entails and will know if they are trying to swing it a bit!)how there work can be adjusted temporarily so that the employee is back and regains their lost fitness, whilst still allowing their injury/ problem to continue to heal. Don't forget to review and adjust regularly. This is no different for the process you follow for pregnant, young or other vulnerable staff.

Ideally this is completed before they actually return (if you are paying them whilst off-sick then this is not an unreasonable request) often the biggest psychological hurdle for someone who has been off-sick for a long time is to make it through the door for the first time! For musculoskeletal disorders people do not have to be pain free prior to returning (indeed waiting for this can actually cause harm.)

HSE research shows that the majority of employees want to work! There is only so much daytime TV one can take! ;0)
There are always those who defraud (yes, it is fraud when an employee knowing works elsewhere whilst off-sick - simple contract law) if you have robust policies in place then these
people will and do get caught out.

As for the insurance bit - employees are insured when they are at work. The employer will always be vicariously liable for their actions. if as an employer you have robust policies in place and have a clear paper trail of what was done and when, then you will have met your H&S legal requirements. I often hear, 'my insurance company says this or that' - all I will say is, bet you cannot get it in writing from them!

Sorry for the rant but I get really frustrated when poor HR policies cost the public sector and industry so much time and money.
Cath (OH Advisor & H&S manager)

Emma McAuley
Member - 16 posts

I find it a little unreasonable to suggest that HR professionals are wasting GPs' time by asking employees to see them before returning to work after an illness or injury. As an earlier poster said, HR professionals are not medically trained and therefore would be extremely foolish to make judgements on the fitness of an employee.

We always liaise between our Occupational Health advisor (part time consultant) the GP and any consultants plus the line manager when planning a return to work for an employee has been off for an extended period of time. If the absence was a week or so then this is not usually required, but where there has been a significant absence due to illness or injury, I think it would be extremely irresponsible to make a decision without the support of the GP, in case the condition was worsened by the work assigned.

For me this is less about insurance cover (although I apprecia\te the OP's concern) and more about having a culture of wellbeing and not expecting employees to return to work without medical "approval".

Nigel DuPree
Member - 158 posts

To rehab or not that is the question ? As unlike any other bit of workplace kit or machinery that is either 'down' and broken or 'up' and servicable or on-line Human Resources may benefit from a transitional state where 'occupational therapy', an agreed level of performance / productivity in the services described as 'light duties', may be of mutual benefit to both employer & employee.

As increasingly the level of performance is not governed by the obvious and/or more easily measured example of how many arms and legs are functional or how mobile, subject to mobility aids etc., the individual is but, how resilient or robust their "software" is in terms of emotional capacity.

In either case whether physiological or psychosocial illness affecting their level of wellness or well-being to perform "normally" on-demand under standard pressure for the industry they are working in the "occupational load" that may be deemed therapeutic would have to be agreed not only by workplace and GP but the individual themselves without undue pressure.

It the individual themselves who will be best able to assess, in discussion with their medical adviser GP, specialist consultant etc. and the level of activity / productivity they would be able to sustain in transition toward standard expectations.

Unless, of course, it is those very standard expectations in demand and pressure that have debilitated or broken the employee in the first place!

Consultation, Risk Assessment and a little "joined up thinking" let alone 'parental' rahter than 'preditory' management ethos as in schools where teachers are told in no uncertain fashion that if they are not coping with 'the heat in the kitchen' that they should "get out" should avoid sickies and/or reduce staff illness, turnover and regular trips to tribunal.

Kevin Brown
Member - 105 posts

I would be extremely surprised if any but the most knowledgeable GP has any greater grasp of Occupational Health considerations than the layman. My own GP resents being used as an unpaid HR consultant to comment on the advisability (or not) of endorsing a return to work. He has openly admitted that he has little appreciation of the physical and mental demands of any occupation but his own and is more than happy to support the patient's judgment. I suspect that his attitude is widespread and to anyone in HR relying on a GP's opinion the best outcome you can expect is that you're getting value for money.
Employers' OH consultants will usually favour the outcome that HR wants, which in itself is fraught with peril, and there are ET case studies that support this view. In my own experience of OH consultants several years ago, I was 'invited' to attend an occupational health examination organised by my HR team, in a building 40 miles away from home involving a bus, train and taxi each way (admittedly at the employers expense). The fact that I was on crutches recovering from a broken ankle at the time didn't seem to strike them as incongruous. After all, it wasn't the fracture that had prompted the referral and it didn't factor in their deliberations. It was when the OH doctor asked "What seems to be the problem with you, then?" that the visit descended into farce.
Sadly, it seems more acceptable in some quarters to spend money on OH consultancy services than on reasonable adjustments in the workplace. As Nigel suggests, joined up thinking is more an aspiration than reality in both public and private sector.

Tony Williams
Member - 29 posts

Kevin

I would be most interested to know of any ET case studies showing that OH consultants 'favour the outcome that HR wants'. Occupational physicians have an ethical obligation to be impartial and objective, while the GP has an ethical obligation to be the patient's advocate. I recently undertook a review of ET outcomes for disability over an 18 month period. There were few involving occupational physician input and remarkably few that involved consultant occupational physician input, and of those, in all cases where the employer lost it was because the employer had failed to follow the advice of the OH consultant.

The outcome of my study was that the tribunal was far more likely to find the employer's actions reasonable when they sought advice from an occupational physician than when they sought advice from a doctor without occupational medicine qualifications, and were also far more likely to receive advice on adjustments. For those interested, the paper was published in January this year. (Williams AN. Are tribunals given appropriate and sufficient evidence for disability claims? Occup Med 2008;58:35-40. )

The question you quoted from the OH doctor does seem odd, however he may have actually asked 'what problem is stopping you from working?' in order to determine whether the problem was travelling to work, or coping with work, so he could then begin to identify appropriate adjustments.

Kevin Brown
Member - 105 posts

Tony
You're assuming that the outcome that HR wants is always going to be an immediate return to work or support for attendance management procedures. The outcome that HR actually wants may be entirely different. Why pay anyone for doing anything that doesn't provide you with the product or service that you actually want? Sophistry? Maybe.
The point I was trying to make is that not all HR practitioners are HR professionals, sometimes they're just ticking the boxes and little practical benefit is derived by either party. I have to speak from my own experience, while suffering from undiagnosed diabetes I was required by my HR team to travel from South Yorkshire to Manchester to attend an OH examination by a doctor who also failed to identify the cause of my illness. I can't isolate him as lacking in ability as several GPs in my local practice had also spectacularly failed to diagnose diabetes too. What I do challenge is the competence of an HR team that insists on sending an employee (already very much under the weather) with a broken ankle all that way. Where was the reasonable adjustment there?
Your final paragraph hits the nail on the head. I'm not so obtuse as to think the OH doctor was completely inept. However, please don't begrudge me the opportunity of having a laugh at the situation I found both of us in at the time. As a matter of interest the doc was mainly interested in testing my peak flow and was (apparently) satisfied I had enough lung capacity to get back to the rail station without keeling over. I've spent longer at W.H.Smith buying a newspaper.

LYNN STARKIE
Member - 1 post

A member of staff currently off sick with a bad back unable to drive wants to be collected from home, driven to work for a few hours - are we entitled to say that we do not consider it appropriate for them to come into work to carry out clerical duties if they are unfit to drive? Pls advise.

Tony Williams
Member - 29 posts

Lynn

While giving specific medical advice over the internet is difficult, I am happy to give general advice. Their GP will remain responsible for their medical care, and should be the main source of advice for treatment. NHS Direct have useful advice on the internet on when to seek medical advice for back pain.

Most people with back pain do not have any significant underlying problem, so although being active may hurt it will not cause harm. Current recommendations from both the Royal College of General Practitioners and the Faculty of Occupational Medicine of the Royal College of Physicians are for rest to be avoided, and for an early return to activity (within a few days) as this speeds recovery.

Your member of staff sounds as if they are either following good medical advice or 'know their back well', so want to return to work as soon as possible in order to help recovery. I would recommend you support them if you can. They are also being very sensible by not driving until they are absolutely confident they are safe.

Even if they did have a significant underlying back problem, doing normal clerical duties is no more likely to harm them than getting out of bed and going to the loo. You can do a simple risk assessment as a manager and a lay person; what is likely to hurt them?

If they had to lift heavy boxes of paper as soon as they start work this is likely to hurt them and delay recovery, but lifting one telephone directory is most unlikely to do so. Sitting in a good comfortable adjustable office chair should be fine, but sitting in an old hard four-legged chair is unlikely to help. They should not have to twist awkwardly at their desk, but should be able to face any screen and rotate their chair rather than twist round for things they have to lift.

I normally advise people recovering from back pain to get up and stretch regularly, and avoid sitting for long periods as they are likely to get stiff. This does not mean a rigid protocol of jumping up every fifteen minutes exactly; it is just a question of common sense. Working in a role where they cannot get up for an hour or more is not a good idea.

Ultimately it is your decision to determine what is reasonable in all the circumstances of the case.

If their back does not settle within a couple of weeks, or if it gets worse, they should be advised to see their GP.

cathy tye
Member - 6 posts

Hi Lynn,

Good response Tony!

It is perfectly acceptable for this individual to return to work as long as the the employer completes a risk assessment with the employee and identifies any aggravating factors to the persons condition and the employer makes reasonable adjustments. The employee knows their problem and how it affects them don't make assumptions based on your own or family/ colleagues experiences.

Research shows it is both physically and psychologically beneficial for the individual to be at work which longer-term leads to less disability and pain.

If someone can give them a lift then great. If not consider paying for (or share cost of a taxi.) It is great that this employee does not want to go off sick and wants to contribute.

Often around 50% (I think) of office based staff will have musculoskeletal pain at any one time! Encourage them to move every 20-30 minutes - set a clock!

Consider encouraging the employee to seek (or consider paying or sharing the cost of) physiotherapy or osteopathy assessment. (If go through GP the wait will often be way too long.) Will get good assessment, treatment and advice and stretches etc.

The GP will say take painkillers, rest but keep active and come back in two weeks if it has not settled! They will not automatically sign off work as it goes against national guidance. The majority of backpain is muscular, i.e. settles/ heals quickly.