Lawyers take different approach to occupational health referrals

Occupational health professionals, lawyers and HR specialists often seem to speak in different languages. Anne Pritam, a specialist in employment and partnership law, examines why this is the case.

Have you ever sat in a meeting and wondered if you should have switched on the subtitles? Too often, where an employee is unwell and is referred to occupational health, there seems to be a mismatch in how individuals who are central to that person’s future within an organisation see the situation. Ironically, the person who probably knows the employee best through day-to-day contact – his/her line manager – recedes into the background as the triumvirate of OH, HR and the law take over.

Crucially, these three professions are not all pulling in the same direction, although there is sometimes an element of “divide and rule”. The medics and lawyers like to think of themselves as the professionals who take a cool, calm overview of the situation, rising above the minutiae of process. HR and OH often seek to come across as the caring professions – the “people’s people”, unlike the hired-gun lawyer. HR and the lawyers often raise their hands in frustration that OH professionals just do not understand the tough world of business necessity.

quotemarksHR and OH often seek to come across as the caring professions – the ‘people’s people’, unlike the hired-gun lawyer.”

So what do lawyers think that OH professionals bring to the table when an employee’s future is under discussion?

Minimising the risks

First and foremost, an in-house lawyer working for a company, or a lawyer retained by the company, will have protecting the company against risk listed as their primary objective. From a lawyer’s perspective, risk equals financial exposure.

The lawyer is not focused on returning the individual to the workplace, unless that is the outcome with the least risk (which is rarely the case). While lawyers would never wish an employee ill, the recovery of the individual is not foremost. A good employment lawyer will play a game of mental chess: if the employee is required to do this, he may respond like that, which may make the company do this, leading the employee to say the company has acted unlawfully, because…

Or, if the company tells the employee not to do something, will he say he has been marginalised and claim that is discriminatory? What should the company do in the way of reasonable adjustments? What is reasonable with regard to resources? Ultimately, it is for a tribunal to conclude what is reasonable and what is not – and that is a question of law.

Privileged process

A well-crafted set of instructions to OH, written or reviewed by a lawyer, should break down questions about disability and adjustments into their constituent parts, to enable a company to analyse properly what it can and cannot do for an individual – and so that a lawyer can make a judgment about the likely outcome of a claim if recommendations are not implemented.

Frequently, HR will call a case conference to discuss the prognosis and next steps in a serious situation. This raises interesting challenges around confidentiality for the medics, and the status of confidential, privileged advice for a lawyer. If a lawyer is present to advise, the discussion is most likely – but not necessarily – privileged from disclosure in any claim; which may be positive if the employee is proving difficult to manage and is, or becomes, litigious.

However, if decisions are made about the employee’s future in that forum, which the company would want to evidence at a later date, it may be hard to do, without losing the privileged status of the advice – so a further round of “open”, documented discussions may be needed.

quotemarksLoose talk between HR and OH may end up being minuted and come back to haunt the company in a subsequent hearing.”

On the other hand, loose talk between HR and OH (or even just discussion around more generous outcomes than were ultimately adopted by the company) may end up being minuted and come back to haunt the company in a subsequent hearing. When all three parties are in the room, delegates become obliged to speak in code, thereby limiting the usefulness of the meeting – or the lawyer sets the tone with a stern warning about the fact that discussions may be disclosed in litigation if they are not privileged, which worries HR, who will be left running a claim and appearing at a tribunal to justify the company’s decisions.

Best of both worlds

With the growth in fit notes and Dame Carol Black’s exhortations that employers should be doing more to get employees back into work, it is inevitable that the conflicting views of OH, HR and lawyers will continue to bemuse each other. At best, the healthy respect in which they all hold each other’s roles ought to mean the best possible result in the best possible of worlds, but sadly, that may be a utopian ideal, which few lawyers, OH or HR professionals at the heart of employee care and management would recognise.

Anne Pritam is a partner at commercial law firm Stephenson Harwood, specialising in employment and partnership law. She advises employers on sickness absence management and works closely with HR and OH professionals to resolve contentious situations. You can contact her via email or telephone: 020 7329 4422.

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