Fitness for disciplinary interviews

‘Is this employee fit to attend a disciplinary interview?’ It’s a question that many occupational health (OH) professionals are faced with on a daily basis.


In the OH consultation we might meet an employee who has been ‘signed off’ by their general practitioner for depression or work-related stress. The story unfolds of how sickness absence had been triggered by a disagreement with a manager, distressing complaints from colleagues or clients or, in some cases, serious allegations of misconduct.


Firstly we assess cognitive ability and the employee’s view of the situation. If the individual is able to understand the issues that have caused their distress, then the basic question of ‘fitness’ to attend an interview or hearing can be answered in the affirmative.


This is usually the easy bit – the tricky part is persuading them to resolve the issue as soon as possible by attending an interview. The employee will have a natural apprehension to ‘facing the music’ and there may be a reaction of denial, resulting in them burying their head in the sand. Nevertheless, by resolving the issues as soon as possible, thus preventing a further worsening of the symptoms of stress and depression, the OH professional can expedite a solution. In addition, any underlying conditions that may have contributed to a breach of discipline need to be investigated and highlighted where applicable.


That all sounds well and good. However, it is often the case that the employee’s GP, as the patient’s advocate, provides an FMed 3 certificate, now known as the ‘fit note’, for an ongoing period of sickness absence.


The OH team can consider fitness to take part in the disciplinary process separately from fitness for work. It is likely that the employee will be fit to be interviewed before becoming fit for their role.


In a recent change of practice, we have started to write a letter to the employee’s GP stating the following:


In our view, your patient is able to understand the reasons for distress, and to try and resolve these issues we have recommended an interview with management.


By resolving these issues, your patient will hopefully be prevented from developing worsening symptoms over a significant length of time.


Your patient may be accompanied at the interview by a friend, colleague or representative who will be able to explain any of the proceedings and issues that arise during the meeting.


Sometimes the OH professional encounters a further obstacle in the form of over-cautious management. In the case of Johnson v Unisys,1 Johnson’s claim for psychiatric injury caused by the stress of the procedure leading to his dismissal failed. It was held that the employee’s redress was limited by the cap on compensation outlined in the Employment Rights Act.2 This case and other case law in this area may go some way to limit management reluctance to resolve the issues as soon as possible.


With this change of practice there has been an increase in attendance of disciplinary interviews in cases of work-related stress and depression. Keeping the GP in the loop and focussing on the need for a quick resolution will diminish the chance of the employee’s condition becoming chronic, and will get that employee back to work with any distressing issues well and truly behind them.


By Dr Sean Ryan, occupational health consultant


References


1. Johnson v Unisys 2001, IRLR 279.


2. Employment Rights Act 1996.

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