Standing in front of a tribunal to give evidence can be a daunting prospect. Jenny Mason looks at what an OH adviser needs to know.
Few OH practitioners relish giving evidence at a tribunal hearing, but it is a real possibility at some point in a practitioner's career. The way that employers act on OH advice can lead to a claim of unfair treatment or discrimination and then legal action. A hearing will scrutinise the process that is in place to provide advice, so OH practitioners should follow all aspects of OH professional standards.
Clinicians' opinions will sometimes vary. If challenged, the clinician can express how and why they reached their opinion, and ultimately the judge will decide on the verdict. Walker v Northumberland County Council (1995) is a test case that provides guidance to clinicians on the foreseeability of illness.
The case concerned a social worker who had reported stress arising out of a greatly increased workload. When he returned to work, he was told that he could have an assistant to ease his workload. However, the assistant turned out to be only intermittently available, a situation that lead to a second breakdown.
This case established the precedent that an employer can be held liable for mental injury to an employee caused by work-related stress. The judgment underlined the employer's duty of care to provide safe systems of work in respect of occupational stress as well as other hazards, and to take steps to protect employees from foreseeable risks to mental health.
Certain processes must be followed before giving a professional opinion on an employee's fitness to work. Initially, the worker must give consent to attend the appointment with OH.
This should be the responsibility of the referring manager, who should make sure the employee is fully aware of why he or she is being referred to OH, and understands that the manager will be provided with a report outlining the outcomes of the consultation and that there may be possible consequences from the consultation.
In practice, however, it is not unusual for an employee to attend an OH appointment without a full understanding of the reason for the referral. Attendance in itself does not necessarily imply consent.
Therefore, it is essential that the clinician ensures that the employee has given his or her informed consent before commencing with the consultation, and this