Occupational Health Standards.
Using Your Occupational Health Report
1. How to Action Your Report’s Recommendations.
At a high level, you are likely to be in one of two situations when you receive the occupational health assessment report:
- Your employee is sickness absent, the occupational health assessment report deems them currently unfit for work and is unable to offer a prognosis for a return to work within the next month or so. In this situation you would continue to manage the absence according to your sickness absence policy.
- Your employee is working or they are sickness absent and the occupational health assessment report deems them likely to return to work within the next month or so. In this situation you might follow this 5 step approach to using your occupational health assessment report. The effort you invest in each step of the process will be proportional to the complexity of the case; less effort if the only need is to replace an office chair, much more effort if the need is for multiple adjustments and support for an employee whose performance is affected by several long term and debilitating health conditions.
Five step approach to using your Occupational Health Assessment Report
Possible adjustments can be identified from:
- The occupational health assessment report.
- A conversation with your employee which might generate other ideas for adjustments and support.
- Desk research of adjustments recommended by various authorities and interest groups which broadly take 3 forms as follows:
1. Providing personal support (termed ‘auxiliary aids’ by the Equality Act):
- Providing adapted equipment, such as orthopaedic chairs, height adjustable desks or voice recognition software.
- Temporarily or permanently adjusting working hours (compressed hours, flexible hours, part-time working).
- Allowing absences during working hours for medical treatment.
- Directly funding private medical treatment1.
- Providing additional training, supervision or mentoring.
- Moving the place of work to another site or floor or working from home.
- Assigning a fixed work location in an otherwise agile working environment for employees with conditions requiring peace and privacy, urgent access to toilets or specialist equipment.
- Re-allocating certain tasks to other employees.
- Employing someone else to provide assistance such as; a reader, a sign language interpreter or a support worker.
- Transferring to a more suitable vacant position (where they have the skills or can be trained).
A recent tribunal judgement found against the employer for requiring their employee to contribute towards the cost of adjustments.
2. Changing the physical features of premises occupied by an employer:
- Making physical changes to the building such as installing natural daylight bulbs, adjusting doorways or providing ramps.
- Providing information, signage and company intranet content in an accessible format.
- Providing training and support for colleagues, such as neurodiversity awareness training.
3. Changing organisational policies and procedures and how they are implemented (termed ‘provisions, criteria or practice’ by the Equality Act):
- Sickness absence management triggers2.
- Adjusting absence criteria when selecting employees for redundancy.
- Allowing a carer or friend to accompany the employee at disciplinary meetings as either a companion or representative.
- Adjusting a job application process to allow applicants with relevant disabilities (e.g., dyspraxia) to apply orally rather than on-line3.
Here are some adjustments which are unlikely to be considered as reasonable because they are not necessary and effective in enabling your disabled employee to remain in, or return to work with you or reduce or remove disadvantage relative to non-disabled employees:
- Adjusting your sick pay policy to extend the period for which disabled employees are able to receive sick pay.
- Expending money and resources and other forms of assistance in support of a disabled employee’s application for ill-health retirement.
Assess each adjustment against the following criteria:
- Is it necessary and effective in enabling your disabled employee to remain in, or return to work, with you. considering the opinions of your employee and occupational health? And / or
- Does it prevent your disabled employee from being placed at a disadvantage or treated unfairly compared to non-disabled employees?
- Are you aware of any precedent where the adjustment has been implemented elsewhere, to a similar job, for a similar health condition in a similar sized company?
- Is it practicable or feasible to implement in your organisation?
- Discuss your assessment with your employee, explain how you have applied the assessment criteria to each identified adjustment, consider any differing assessments expressed your employee and try to conclude with agreement.
- Document your assessment and in particular, document your assessment of any identified adjustments which you have decided not to implement.
- Ensure a right of appeal:
- Your policies and procedures should enable your employee the right to appeal against a decision not to implement an adjustment.
- Normal policy design criteria apply, including the involvement of an independent authority to hear and review the appeal (e.g., another manager of equal or higher seniority).
For agreed, reasonable adjustments, document the required actions, who will own them and the target date for their implementation. Bear in mind that:
- Some actions can only be taken by the employee (e.g., contacting your EAP, accessing self-help resources, attending training courses, etc).
- Actions requiring support from others within the team or outside of the team such as HR might require you to take significant ownership on behalf of your employee in order to avoid aggravating their health condition (e.g., in instances of stress, autism, etc).
- Keep to an agreed schedule for the review meetings. They could become an additional agenda item at regular 121s.
- Hold both yourself and your employee accountable for progressing your respective actions.
- Review the implementation, effectiveness and reasonableness of each agreed adjustment.
- Make changes the Action Plan with agreed actions and implementation dates when it becomes apparent that change is required.
Use the Action Plan as a living document where you record your review meeting conclusions and decisions.
Having followed this 5 step process you might need to decide:
- Is performance now at an acceptable level having implemented and reviewed the effectiveness of the action plan? And if not then;
- are there further reasonable adjustments which could be made and support which could be provided?
- should you dismiss your employee because they are unfit for work?
- is ill-health retirement an option (dependent upon the rules of your employee’s occupational pension scheme)?
- To what extent is performance being affected by conduct issues which are outside of the scope of the occupational health assessment but probably within the scope of a disciplinary policy?
If you are considering any form of disciplinary process, dismissal or ill-health retirement then you will need to call upon expert advice from human resources and / or your legal counsel.
2. When your Report Disagrees With Your Employee’s NHS Fit Note.
It is inevitable that the opinion of occupational health and the NHS can disagree given their different roles.
The role of the NHS.
The role of the NHS includes protecting and caring for your employee’s health, it does not include supporting and protecting the interests of your organisation.
A Department of Work and Pensions survey of 1,665 NHS GPs found that over three quarters felt obliged to issue patients with fit notes for reasons that were not strictly medical, e.g., to avoid discussion and the risk of extending appointment times, regardless of the consequences for the patient’s employer4.
The role of occupational health.
Occupational health and NHS practitioners share the same ‘hippocratic oath’ towards your employee. Occupational Health Practitioners are required by the Royal College of Physicians’ Occupational Health Standards and the Nursing and Midwifery Council’s Code of Professional Conduct to remain impartial and independent at all times.
However, occupational health usually understands the requirements of the employee’s job better than the NHS and they will use this understanding, available medical information and the opinions of the employer and employee to produce an independent assessment and recommendations.
Considering these roles, Government guidance allows you to make decisions on the basis of occupational health advice rather than the NHS fit note5.
“A GP assessment about whether your employee is not fit for work or may be fit for work (and any other advice in the fit note) is classed as advice, and it is for employers to decide whether to accept it. Occasionally, you may believe that your employee is not fit for work when they have been assessed as fit for work by their doctor, or you may think that your employee could do some work when they have been assessed as ‘not fit for work’ by their doctor….. In situations like this, you as the employer are within your rights to gather other evidence about your employee’s fitness for work from other doctors or healthcare professionals. You can choose to give this other evidence precedence over the advice in the fit note”
Your role as the employer.
Ultimately, you have to decide who’s advice to follow. A number of employment tribunals have upheld an employer’s decision to act according to occupational health advice rather than the NHS fit note. The lessons learned from these tribunals are that:
- If your employee has been treated or is being treated by a specialist, the occupational health assessment report should evidence that the occupational health practitioner has:
- Requested letters / reports issued by them.
- Conducted their own assessment and not relied solely upon specialist letters / reports.
- The occupational health assessment report should; be well structured and easy to follow and free from any internal contradictions.
- The reason(s) for your decision need to be sensible, reasonable and documented at the time of the decision.
3. Fitness to Attend a Procedural Meeting.
A special case of disagreement can arise between the NHS and your occupational health report where:
- Your employee refused to attend a disciplinary meeting and provided an NHS fit note stating that they were unfit for work due to anxiety, depression or work related stress.
- You referred the employee for an occupational health assessment which recommended that whilst your employee was unfit for work, they were fit to attend the disciplinary meeting because:
- They were able to understand the case against them and of representing themselves (either in person or through a representative).
- Attendance would not seriously aggravate their condition (e.g., create a risk of suicide).
In making this recommendation the occupational health practitioner will have balanced the relative effects upon your employee’s health of:
- Attending the meeting. Whilst distressing, the sooner it happens the sooner the procedure can conclude, enabling your employee to mentally heal and move on.
- Putting off the meeting. Continued worries about the unresolved procedure may erode feelings of wellbeing and develop into a chronic long-term condition such as anxiety and depression.
The occupational health practitioner can recommend adjustments to reduce the distress of attending, such as:
- Providing a written explanation of the case against the employee in advance.
- Being accompanied by a particular companion or representative.
- Omitting the presence of the line manager or other ‘antagonists’.
- Holding the meeting in a ‘neutral’ meeting location minimising the risk of coming into contact with other employees.
- Allowing extra time to consider the charges and to reply.
- The occupational health practitioner assesses that your employee is fit to attend and the health risks associated with attendance are minimal.
- You have made reasonable adjustments to enable your employee to attend.
- Your employee continues to refuse attendance on health grounds.
Then ACAS guidance allows you the option of holding the meeting in your employee’s absence, taking into account any written representations from your employee, and any other available evidence, before making a decision (subject to your organisation’s policies including rights of appeal, etc).
- Croft Vets Ltd & Ors v Butcher. Employment Appeal Tribunal. UKEAT/0430/12/LA UKEAT/0562/12. 2013.
- Northumberland Tyne & Wear NHS Foundation Trust v Ward. Employment Appeal Tribunal. UKEAT/0249/18/DA UKEAT/0013/19. October 2019.
- Mallon v AECOM Ltd. Employment Appeal Tribunal. UKEAT 0175_20_2002. February 2021.
- General Practitioners’ attitudes towards patients’ health and work, 2010-2012. Department of Work and Pensions. Research Report No. 835
- Getting the most out of the fit note: guidance for employers and line managers. Gov.uk. Updated 14 December 2016