Stroke Victim return to work!

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Surely the 2-4 days would be covered by self certification, the advice was good.
I had to deal with someone given the same advice who chose to work almost straight away. Guess what, severe internal bleed, collapse in workplace, other staff terrified and person confined to bed for a few weeks.
Whilst I agree that some Drs note advice may appear irrational I think that it's about time that we gave up whingeing about it and let a persons OH dept Dr deal with the GP and come up with a consensus view.
If my car mechanic advises or tells me not to drive faster than 20mph because the wirbelgrommet is about to pack up and could cause an accident (apart from the fact that there is no such thing) I'm pretty sure that I would take his advice. And yes I know another mechanic may take a different view, but he may not know that I'm a lunatic driver at anything over 20mph!
Absolutely agree with Carole. Considering that no patient is exactly the same as another I also think that bandying about percentages is almost meaningless in this situation - when I had my appendix removed I was in hospital for seven weeks...............................

I forgot to add - Paul - I am very surprised that your wife was allowed to leave Hospital only two hours after her proceedure and a general anaesthetic, especially as you say it was invasive. My husband was not allowed to leave for 4 hours after he was back from the theatre and that is a rule of the hospital he was in.

As far as stopping her from going to work, well i would suspect its too late now and you have my sympathies given I am battling a very restless person myself, but I always get tough and turn the tables and say something along the lines - You have heard the advice you know what you should be doing, if you wont do it for me do it for ? and if that line does not work then I usually add something like, if you go and it makes you worse dont expect any sympathy from me! Given she is a Director of the organisation though I would ask is she setting the right example to her colleagues.

Tony - I beg to differ with your comments. My husband had day surgery on wednesday. He too had a general anaesthetic and was given advice about what he could and could not do when he left the Hospital and for how long afterwards.....however it was given to him by his surgeon NOT an auxillary!

Not only do you have to take into consideration the affects of anaesthetic but also the type of surgery that has been undertaken. These days day surgery can be anything from the insertion of a camera to quite extensive arthroscopic or laproscopic surgery which could carry with it the risk of bleeding if somebody did not follow instructions. The other thing is everyone is affected differently by proceedures and by other drugs and conditions they may have. To therefore make blanket statements that most people are fit for normal activities the day after day case surgery is wildly optermistic.

My husband has to be on crutches for 5 days so he will not fall into that category for a start and in a couple of weeks my "day case" surgery will put my right arm in a sling for 2 weeks at least(i am right handed) and I have been told not to expect too much after 12 weeks! So you see just because a proceedure takes place for one day is no reason to trivialise it and assume the person will be back to normal the next day.

Paul

If you have read past postings by me you will not be surprised to hear that doctors differ significantly in the advice they give. A survey of seventy anaesthetists in 2003 showed that, after day case surgery, 35.7% felt a patient could return to work the next day while a further 12.9% felt they should only do so if they had surgery in the morning. 11.4% felt that it depended on the nature of the work done, so that for example airline pilots and bus drivers should not work for more than 24 hours although only one out of seventy anaesthetists felt that an anaesthetist should not work the next day.

20% felt it was safe to drive a car the next morning, while 63% felt the patient should wait 24 hours and 16% felt the patient should wait 48 hours. None felt the patient need wait longer.

The anaesthetic will normally be cleared from the system within a few hours. Many anaesthetics dissolve in fat, so very obese patients may take longer to clear the anaesthetic. The patient may well have symptoms for longer, but these could be related to the surgery rather than the anaesthetic, or to other issues such as pre-operative stress causing insomnia, with rebound tiredness after surgery.

It may be more appropriate to look at your comment ‘the doctors told her…’. In most cases the person who actually gives the patient the advice is not the doctor, and not the nurse, but the nursing auxillary. They often start with the premise that patients are looking for an excuse not to work, so they are doing the patient a favour by advising a prolonged period of absence from work.

So, while I cannot comment about this particular case, in general most patients are fit for most normal activities the day after day-case surgery. Normal activities generally include work, however I would usually advice the individual to be sensible and adjust the workload for the first day. I would also advise against driving long journeys the following day, and against driving HGV and PSV for 48 hours.

More importantly, the fact that your wife has had an anaesthetic may affect her ability to function but is unlikely to harm her, so she is most unlikely to be ‘putting herself at risk’ as you state, particularly if she takes the train to work rather than drives. The question she should perhaps ask herself is whether a slight residual impairment from the anaesthetic or the surgical procedure would harm her business if she makes an error of judgement.

Today, my wife underwent invasive surgery in hospital as a day patient. The procedure took place at around 5pm and she was given a general anaesthetic. I was able to collect her at 7pm. The doctors who discharged her strongly advised that she not return to work for 2-4 days (but as far as I'm aware they did not issue a 'sick note'). She was given two separate painkillers to take for the next several days, and warned not to drive, operate machinery, or take any major decisions. They explained that the anaesthetic remains in the body for up to 24 hours after surgery and affect judgement and faculties.
Tonight however, she insists that tomorrow morning (barely 12 hours after surgery) she will ignore the warnings of the doctors and commute by train into work, where she will attend supervision meetings in her capacity as a director of the organisation.
I am unable to dissuade her from doing that, clearly I cannot physically restrain her, but I find it very difficult to stand by and watch her put herself at risk in this way.
Can an employee really ignore doctors advice in such an unreasonable way? If made aware of the situation, what is the employer's responsibility to the employee in these circumstances?

Matt

The question of irrationality is not whether or not she has a note from her doctor, but whether the advice the note gives, that she should stay off work, is rational. If she is fit to go shopping, go to a restaurant or the cinema, use public transport, walk the dog, cook meals and do housework why would she necessarily be unfit to sit behind a desk and answer the telephone? The sick note may well be irrational.

You seem to be critical of the fact that the employee in this case is motivated by finance. The great majority of employees are motivated to work because they cannot afford not to, and the great majority are not completely fit and never will be. In most cases the employee and employer find an appropriate balance, with a return to work when the employer is capable of doing a reasonable amount of work while they are recovering, what we often call a 'rehabilitation programme' or 'phased return to work'.

This is not just good for the employee, it is good business sense and is a core part of the proposed new approach to sickness certification, the 'fit note'. If all employers blindly accepted sick notes without question, sickness absence rates would be significantly higher than they currently are. In the current economic climate these unnecessary additional costs could well be sufficient to represent a terminal illness for your business.

The actions of employers have to be seen to be 'reasonable' in law. If an employee wants to be off sick and has a sick note from a doctor, it is reasonable for an employer to assume they do not want to work and allow them to remain off sick. On the other hand, if the employee wants to work but has a sick note, it is not always reasonable for the employer to prevent them from working. It would be reasonable for the employer to question the sick note, either by going to the GP for clarification or by seeking a second opinion from an occupational physician.

If you fail to act reasonably you could be liable for breach of contract.

Tony, your last argument is irrelevant to this thread as there is no evidence/suggestion of irrationality here: the woman had a stroke and was signed off for four weeks by her doctor. Presumably the doctor knows what her job is and has acted accordingly in light of that knowledge, rather than suggesting, for example, light duties.

If the employee feels she is fit to return to work, she should return to her doctor first. Presumably she didn't in this case, because she knew the doctor wouldn't declare her fit to return to work. In the current situation, Richard is on notice of the fact that she wants to return against her doctor's wishes and that she is motivated to return, not by a sudden and completely recovery, but by the fact that she feels she can't afford to be off work. No liability for the employer you say? Yeah, right.

Further to my last post, there is a clear legal principle that allows an employee to work against the advice of a doctor where that advice is irrational (see Jones v Post Office).

I see many sick notes from GPs that are irrational. If an employer refuses to allow the employee back to work in these circumstances the employer is technically in breach of the employment contract.

Many employers do not understand the exact position of GPs, or the nature of a Med 3 sick note.

GPs are not experts in advising on fitness to work. Many feel very uncomfortable about having to advise on fitness to work because they do not recieve any training to do this.

The Med 3 is intended solely to authorise payment of SSP. It does not have any other legal meaning, and GPs are not in a legal position to prevent employees from working as has been suggested. The only person who can prevent another from working is the employer, who must have good grounds to do so. There is no legal requirement for a GP to 'sign someone back to work', it is up to the individual to decide when they feel fit to return, and it is up to the employer to decide whether to allow them to do so.

Clearly advice will be needed, and although GPs may not be experts their advice is often spot-on, and you should only disregard it if you have grounds to do so. In this case you do have to question it, because the employee wants to return to work. While I cannot comment on this specific case, there are many cases where individuals have a 'minor stroke' or 'transient ischaemic attack' and are perfectly fit to work provided they do not drive or work in a role that puts them at significant risk if they collapse.

It is also incorrect to assume that the employer is liable if an employee becomes ill at work. This would clearly be an absurd situation; many employees become unwell at work just because they happen to be at work when they become unwell. Provided the employer has ensured appropriate first aid provision, there would be no question of liability.

Some of the comments made above would constitute direct discrimination if made about an employee who had a disability; a major reason for the introduction of the DDA was to stop employers saying 'I don't want you in my workplace in case you become ill'.

This is a very important thread, it has raised key issues, and hopefully some of the answers will help employers understand their role, the role of GPs, and the rights of employees better.

I agree with everything Amanda has said and would just add that some companies have a charity or fund which is run by an independant panal for hardship cases. This gets them out of the very situation Amanda was referring to. This employee is in the very situation that would fall into that catogary.

If the GP has recommended that she abstein from work for a minimum of four weeks and has written a certificate to support this, then only the GP can authorise her return to work by signing another certificate to state that she is fit to work. The individual can request that the GP reduce/cancel the four week certificate; however, the GP will have the final decision on this matter. They - after all - are supposed to be the experts, regardless of whether this individual knows her own body or not. Unfortunately, she will not know when/if another stroke will occur and it is recommended that she listen to advice to promote her own recovery at the earliest convenience. I understand that she cannot afford to be absent from work as she needs to support her family; however, this early return can only prolong her recovery and risk a repeat of the stroke. With all due respect, if she is not alive, how will she support her family then? As an employer, I would not want this on my conscience.

Richard,

You really have been put into a difficult situation emotionally; however, you must remember to protect your business and act professionally. Allowing her to return to work without GP authorisation is against the law and you would run the risk of prosecution if the worst case scenario occurred.

Additionally, this individual should not be paid Annual Leave during periods of sickness absence. There is already an on-going debate about this issue within the forum. She will be able to claim that Annual Leave back from the Company on her return, unless you have a clause within your Contract of Employment that states otherwise.

Best practice states that Companies have an obligation to support employees with regards to their return to work, so it is advised that you arrange an appropriate appointment with Occupational Health - if only to cover the company legally in the event that something unwanted does occur.

James Fairchild,

If she has understood that she will only receive SSP on the commencement of her employment and signed a Contract of Employment to this effect, she will not be able to claim for full pay during sickness absence. Some companies extend management discretion with regards to serious long term illness and may agree to pay full pay for a time period, dependent on the circumstances. However, discrimination claims could then be initiated by other employees that are absent long term due to sickness, as assessment of each individual may not be determined fairly.

I hope that this information assists and good luck!

I have just read all the above posts and I feel so sorry for small businesses. It seems whatever decision you make as a boss you will lose. If you let the employee work you run the risk of legal action. If you don't let the employee work you run the risk of legal action. It seems like the whole system is so over complicated with grey areas that everything you do is wrong. Everybody will lose when small companies go out of business because they go bust with all these legal bills. If that happens nobody will get paid whether they are off sick or not because the company wont exist.

Tony, I think you're missing the point. I don't think there's any legal principle giving an employee the right to work when they've been signed off sick by their doctor.

By allowing her to return to work knowing that she is going against her doctor's advice, puts Richard's company in breach of their duty of care to that employee and at serious risk of a negligence claim.

There are a number of issues here, including legal ones.

First, employees have a right to work. See Withers v Perry Chain co. There may be exceptional situations where work would put them at grave risk so they should be prevented from working, but these are rare.

If someone is clearly at high risk of stroke, then they should not work in a role where having a stroke would put them or others at greater risk. So they should not drive a fork lift truck, operate a crane, work close to hazardous machinery where they could be injured if they fell against it etc. Driving falls into this category; after a stroke an individual is not allowed to drive a car for at least four weeks by law. If they do so, their insurance will be invalid, so they are automatically committing a criminal offence by driving without insurance.

Second, will work put them at greater risk of having another stroke? If the work is very stressful, either physically or psychologically, then it could do, so it would be advisable to avoid heavy manual handling, prolonged physically demanding work or work that is obviously stressful. Receptionists who frequently deal with rude or aggressive individuals may be at increased risk. Remember that where there are financial issues, preventing the individual from working may put them under greater stress than work itself.

Otherwise, the simple test is ‘will the employee be more at risk at work than they are cooking at home or shopping in Tesco?’ If not, then they should be allowed to work. Yes, they may collapse at work, but better that, when colleagues can call an ambulance, than at home where there is no-one to help.

I recommend you suggest the employee goes back to the GP, explains their situation, and asks if they can do some work. Alternatively ask for an occupational health opinion if the GP feels unable to give advice.

Guys, guys!!!
She WILL NOT play the game, I/we are not forcing her to do anything, quite the opposite. I have found out the Dr has told her she must inform the DVLA of her predicament and not drive, she has not taken notice of this either, so you see what we're dealing with!!!
She returned to work and was so ill, we sent her home. She has decided to take our advice and is using her remaining holiday entitlement instead of SSP.

Glenn, calm down! I am a Dr involved in occupational health and I agree with what you have said regarding OH and GP opinions but generally the GP is more au fait with the medical condition and possibly personal issues of the individual and would give the ultimate sign off. Most GPs would look to sign off if a good case was put by OH and would take on board comment about a patients working environment and their activity within it.
Regrettably there are still some OH depts that are overly management led and occasionally in need of a GP or consultant to help achieve a balanced view.

Phil is exactly correct. Relatives especially Executors of Estates become very aggresive when they get a whiff of money through negligencel My first thought in their place would be what the devil where you thinking about allowing her back in the work place. In addition if she has any sort of legal cover on house insurance etc the executors can claim on it and take a case out against you.

Is all this worth it after all she is just a receptionist. get in a temp and if your conscience is bothering you change your sickness policy so that she can get full pay for six months (26 weeks) before having to revert to Incapacity benefit.

You mention "carrying out a risk assessment", do just that, but bear in mind all the factors that have been included here, the words 'risk assessment' seems, to some companies, to be the answer to all their problems, they think that simply writing stuff down cures all ills.

You should include the worst case scenario, and how likely that scenario is.

I agree with a lot of the discussions here, but to add to Kevin Thomas' point;
you say she is strong-willed, does she have relatives? are they strong willed too? now look at your worst case scenario and ask yourself whether they would use their strong will to make a claim against your company in the event of her death.

Regardless of OH? How rude, OH can and does challenge GP decisions.

A GP and their opinion, often of which is limited when related to the working environment, is not the Holy Grail.

Regardless of OH if the Dr hasn't signed her off sick she must not go back to work. If her contract states that she is only due SSP during sickness so be it, but there may be other benefits that she is entitled to also.
I am suprised that she is only signed off 'for at least 4 weeks' and I would expect to see another note stating the same at the end of the period! James is absolutely correct mentioning driving, if she does then she should report the stroke to the DVLA.

Get ready for a tribunal claim. If I were this employee, I would be claiming that your refusal to pay proper sick pay is itself a discriminatory factor (indirect discrimination as it disadvantages disabled people in particular).

Then another claim that she was forced (directly or indirectly) to ignore her doctors advice and return to work too early.

On another issue - does she drive to work? Has she had her licence suspended for medical reasons? If not should she?

Difficult as it seems I would suggest perhaps that you would be better off taking on temps on a weekly basis than risk having her back with all the risks that it would involve. At least it would support your workforce whilst she is off.

This employee will have to accept her situation after all she knew that would be the case when she signed her contract. Its all very well hoping that its not going to happen to you or thinking that it never will but unless you take out some sort of insurance to cover for long term sickness if you are not paid, you can hardly expect your employer to have you back if you are not fit. Knowing your body and and having a strong will sadly do not stop blood clots from forming! Do you really want to take that risk and for her sake you need to do what is in her best interest which is follow what her Doctor has advised.

Thanks for all your comments guys. Sadly I have no authority to alter or revise our sick policy, we only pay SSP. She is a strong character and says she knows her own body and her limits and wants to come back regardless. As her boss, I wanted to ensure that I was seen to have assessed any risk and eliminated it to the best of my ability. I also have her best friend on long term leave who had an eptopic pregnancy and has had complications with the recovery (having had a fallopian tube removed) who is on SSP, we couldn't treat one more favourably than the other without getting into hot water. In the meantime of course, being a small business their absence affects the rest of the team, we are all working flat out with no breaks and often only 1 day off per week. Two of my staff have handed in there notice as a result because this situation has dragged on for so long. I suppose I am also trying to be as considerate as I can to all involved as this affects more than just the two who are sick.

How valued is the employee? If she has to return to work because she can't afford to stay home sick then as Anne said you need to look at your sick pay policy, there is an insurance policy available that will pay out for over 7 days sickness on production of a sick note. If the Doctor has signed her off for 4 weeks then you should not allow her to return to work regardless of her loss of pay, the Doctor (usually) knows what he is talking about. Your insurers might be a bit upset iof she comes back under a sick note then drops dead in your reception with another stroke. Then of course there is the HSE and RIDDOR reporting who tend to view a death at work pretty seriously, Police need to be informed as it would be a sudden death. Do you really want her to return to work before the Doctor says it is OK.....