Employee Sickness and Fitness for Work

Overview

The second edition of Employee Sickness and Fitness for Work will show you how to get the best out of your employees, from recruitment to retirement, while protecting yourself and your firm to the full.

For example, did you know that you don’t have to accept every doctor’s certificate for sickness absence? Or that not all duties are suspended when an employee is off sick?

The Report is filled with constructive advice and guidance on all employment regulations.

Topics covered in this Report include:

The law on recruitment
Assessing health whilst in employment
Short-term, persistent absence
Long-term or acute sickness absence
Work-related illness or injury
Disability discrimination – latest law and case study
Medical ethics

This Report will benefit:

Employment lawyers
HR professionals
Recruitment specialists
Employment and recruitment agency staff
Training professionals

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Content

CHAPTER ONE-THE LAW ON RECRUITMENT

• How do you form a contract?
• Conditional offers
• Medical assessment by non-medical personnel
• What is confidential?
• What do managers need to know?
• Disability Discrimination – the impact of the Equality Act 2010
• ‘Lying’ about medical conditions
• When is a medical examination necessary?
• The purpose of pre-placement medical assessments
• Assessing fitness for work
• Medical standards
• Legal duty of care
• Breach of human rights?
  SUMMARY

CHAPTER TWO – ASSESSING HEALTH WHILST IN EMPLOYMENT

• Health surveillance
• Warnings
• Examinations and assessments when at work and off sick
• Medical reports
  SUMMARY

CHAPTER THREE-SHORT-TERM, PERSISTENT ABSCENCE

• Authorised absence
• Categories of sickness absence
• Importance of following fair procedures
• Procedure for short-term, persistent, intermittent absenteeism
• Obtain medical evidence
• Commercial factors
• ‘Warnings’ or ‘Cautions’
• Dramatically improved attendance
• Unreliability
• Reliability
• Opportunity to appeal
• Fair reason for dismissal – Some Other Substantial Reason (SOSR)
• The nature of absence control policies
• Concern about publishing ‘acceptable levels’
• Customised self certificates
• Genuine absences caused by genuine sicknesses are SOSR for dismissal
• Appropriate penalties
• Letters to employees
• Status of medical statements (‘Fit Notes’)
• Absence control policy – short-term, intermittent, persistent absenteeism: Communication to staff
• Dealing with the malingerer
  SUMMARY

CHAPTER FOUR – LONG-TERM OR ACUTE SICKNESS ABSENCE

• Long-term or chronic sickness cases
• Underlying medical condition
• Obtaining a medical report
• Human rights issues
• Consult the employee and allow an independent report where relevant – this takes the place of warnings
• Consultation is essential in the normal case
• The employer is expected to keep in personal touch
• Not all duties are suspended when off sick
• Employers are not expected to accept a medical report without question
• The role of the medical expert – disability cases
• Failure by a doctor to investigate the nature of the illness
• Occupational Health Adviser versus Specialist
• A third medical opinion
• New medical evidence
• Alternative employment
• Frustration of contract
• Permanent Health Insurance (PHI) terms in a contract
• Compensation reduced for contributory fault
• Absence without permission
• Personal injury claims and PHI
• Conduct during sickness absence
  SUMMARY

CHAPTER FIVE-WORK-RELATED ILLNESS OR INJURY

• Concerns for employers
• Work Related Upper Limb Disorders (WRULDS)
• Duty to warn and train
• Warnings
• What makes an employer guilty of negligence?
• The Court’s views on work-related injuries
• The ‘egg shell skull’ principle
• Some prescribed diseases
• Stress and mental illness
• Alcohol and drug abuse
  SUMMARY

CHAPTER SIX – DISABILITY DISCRIMINATION – LATEST LAW AND CASE LAW

• Meaning of ‘disabled’
• How do the tribunals determine whether someone is ‘disabled’ within the means of the Act?
• Employer’s knowledge of the disability
• What do employers need to know?
• Justification in refusing to employ
• What is ‘disability discrimination’ under the Equality Act?
• The role of the medical expert
• Some practical advice
• Guidance for a policy
  SUMMARY

CHAPTER SEVEN – MEDICAL ETHICS

• Why is the duty of confidence so vital?
• The law and confidentiality
• Regulatory bodies
• Professional codes
• Occupational physicians and nurses
• Confidentiality clauses in contracts/manuals
• What is ‘disclosure’?
• Disclosure to the employer and/or to the insurance company
• Exceptions to the rule of confidentiality
• Informed consent
• Consent can be ordered by the Courts
• Defining ‘confidential’ information
• Disclosure without informed consent
• Unauthorised disclosure can also lead to libel action
• Data protection
• Alcohol and drug testing – the legal implications
• Testing for HIV
• Other forms of testing
  SUMMARY

• Useful websites and guidance

APPENDICES

• Appendix 1: Data Protection Act 1998
• Appendix 2: Medical consent form
• Appendix 3: Sickness absence model letters
• Appendix 4: Long-term absence letters and policies
• Appendix 5: Medical questionnaire for WRULDS
• Appendix 6: Alcohol and drug testing policy
• Appendix 7: Draft policy on controlled (illicit) substances
• Appendix 8: Confidentiality clause example
• Appendix 9: List of cases