The
stark reality, in this litigious age, is that the potential for future
litigation must guide the practices and procedures of the OH department. This
includes keeping accurate records as you may be required to act as an expert
witness, Jane Fairburn
According to Stephen Covey: "To begin with the end in mind means to
start with a clear understanding of your destination." It means to know
where you are going so you understand better where you are now, so that the
steps you take are always in the right direction.1
Unfortunately, in these litigious times, the end to have in mind is not
always the successful resolution of management or employee work/health issues
but the employment tribunal. When you look at recent articles in a variety of
journals, the stark reality is that the awareness of legislation and the
potential for future litigation must guide the behaviours, practices and procedures
of the occupational health department.
Evidence-based practice
All the more reason for so-called ‘evidence-based practice’, although
unfortunately this can still be an everyday, sometimes uphill, challenge. When
faced with a situation that has never been presented before, it is not possible
to ‘research’ the best way to manage a situation – already at the other side of
the desk – and for which the evidence/information has not yet been established.
An example of this problem is the path-finding Disability Discrimination Act
– which illustrates the difficulty in basing practice on ever-evolving
decisions. Recent articles in Occupational Health by Goldman and Lewis2,3
report the issues regularly arising at employment appeals tribunals – the
latest being the discussion of the potential effects of ‘psychological
overlay’.
Do worms and cans spring to mind?
For those in OH, the World Health Organisation International Classification
of Diseases is becoming more and more essential as a reference document. There
are, in addition to the obvious professional considerations, measures that can
be considered in the OH setting to ensure the adequate ‘justification’ of
actions and show good evidence of when, where, why and how certain advice was
given or actions taken.
Note taking
During a recent training day on legal issues, there was a discussion
regarding occupational health note taking. There was a clear division between
those who choose to write an essay and those who simply make comments or note
key words during a consultation.
Data protection law was cited as a key reason for not documenting too much.
But the fact that some teams share caseloads and therefore follow-up, makes
life difficult when notes are not adequately taken. It can be a real
disadvantage if you do not have a well-documented past history, when a person
presents some time in the future.
What is the right thing to do? Given that an employment tribunal can be held
some months after an employee has left the company and their notes have been
long archived, it can be hard to remember details of conversations, and even
nuances within exchanges, which could later allow a tribunal chair to better
understand the trail of decision making and the information that influenced it.
So, who’s ‘side’ is the OH professional on at an employment tribunal? Of
course, OH professionals are ‘independent’ and therefore are not ‘representing’
either side. However, it is almost always the case that it will be the company
solicitor who is calling on you to clarify issues or instances rather than the
representative of the (likely to be long gone) employee.
At the tribunal you will be reminded that the employee is no longer with the
company and your ‘duty of confidentiality’ does not apply – I won’t insult
readers of this journal by giving suggestions of responses to that old
chestnut.
It must be said, however, that in practice it can be difficult not to have a
view when involved in a tribunal brought by an employee who has been fully
supported by OH, HR and management in general, and who has, in your opinion and
certain knowledge, had fair treatment by all. It is important however that when
you are asked for information, there is written evidence to support you, rather
than a vague feeling that person was well treated "as far as my memory
serves me".
At a tribunal, there are matters of "etiquette" to consider as
well as procedure. Each witness is issued with what is known as a
"bundle", which contains all the paperwork in relation to employment,
including, with due consent, the OH records.
This bundle can be several inches thick and will be referred to constantly
in the following fashion, "Can I refer you to page so and so where such
and such a thing was said or done". You would then usually be examined on
the notes of particular OH review meetings. This is where you may be ecstatic
to find copious notes were made, as well as detailed references to exactly what
was said. When an employee has been directly quoted, this can be especially
valuable in recalling specific details. For example, it may be deemed important
whether it was an employee request that they be considered for early retirement
on health grounds or whether the OHA or manager raised the issue.
Tribunal procedures
The surroundings of an employment tribunal might be described as, ‘fairly
informal’ by an experienced solicitor, but to an OH professional entering the
environment for the first time it can be hugely disconcerting. Prior to giving
evidence, each witness is asked to swear an oath – which is also daunting if
you have never been in this position before – and certainly brings an aura of
seriousness to the proceedings.
Following this, one side will begin to examine and there will be an
opportunity for re-examination by the opposing counsel, where again the bundle
is referred to and another ‘spin’ may be applied if the OH notes are not
sufficiently clear.
It is difficult not to see the proceedings as a question of OH professional
integrity, but it has to be remembered that the OH adviser has not been the decision
maker in the circumstances that resulted in dismissal. It must be clear from
the records, the OH notes and the management memo, that pertinent advice was
given to management. It is clearly for management to use this professional
information, alongside all the other relevant information, eg, HR, management
and possibly union meetings and reviews, before making its decisions.
A reliable/credible witness
Tribunal reports can refer to a person as having been found to be "a
reliable/credible witness" and this can be considered important by the
chair and panel in reaching a decision. An example can be seen in an employment
tribunal decision5 where it is noted: "We [the tribunal panel] found X to
be a reliable witness and she is obviously a very experienced occupational
health officer who, having regard to the independence which that role gives
her, would not in our view have had any reason to misinterpret or misunderstand
the information being provided to her by either the applicant or his
doctor." It is hoped that any professional OH witness would be found to be
thus.
Proper, complete note taking will help to achieve this, as will the witness
holding the necessary professional qualifications and appropriate training for the
role. Notes should also be made of any discussions with managers about
individual employees that will also help with the context of actions taken. Rob
Coward, an experienced employment law solicitor with Bullivant Jones of
Liverpool has supported this, saying: "Good contemporaneous note taking by
the occupational health professional is extremely important, especially as it
may be quite some time later when they are called as a witness."
Coward has been involved in training groups of OH officers and human
resources professionals in employment law, in particular, best practice in
relation to disability discrimination. Coward also comments that he fully
recognises the responsibilities of the OH officer, both as an employee or
servant of the company – which requires them to respond to a request to act as
a witness – as well as the professional role of employee advocate.
The RCN was contacted recently on whether there is any guidance for OH
professionals called as a witness by a company. There is, to date, no such
document. It is hoped that this article may go some way in providing assistance
to peers finding themselves in this position.
References
1. Covey SR (1989) The Seven Habits of Highly Effective People. Simon &
Schuster: London
2. Goldman L, Lewis J (2001) See you in court, Occupational Health,53 (5):14
3. Goldman L, Lewis J (2002) An absence too far, Occupational Health, 54
(2): 12
4. Case No 28018780 7 Sept 2001
5. Howard G (2001) Expert advice, Occupational Health, 53 (2):12
Further reading/information
1. Employment appeals tribunal decisions can be read at www.employmentappeals.gov.uk/
Jane Fairburn BSc(hons) OH Dip RGN MIOSH is occupational health officer,
Wincanton plc
Advice for the expert witness
Gillian Howard4 has issued some
practical advice on being an expert witness and advises OH professionals not to
be intimidated by either the employee or the employer.
The following are basic essentials when referrals are being
taken from managers:
– Employees are made aware of the reason for referral
– Managers are fully aware of the role, functions and
accountabilities of the OH service
– Sickness absence policies are in place, including criteria
for company sick pay
– Referral criteria are well documented and communicated
– Incomplete or poorly completed referral forms are returned
for proper management attention
– Follow up review appointments are arranged until OH input is
completed
– Due consideration is given to DDA and other relevant
legislation
– Note keeping is accurate, legible, complete and
contemporaneous
– Employees consent to written feedback being given to
management/HR
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– Communications are as open as possible and employees fully
understand the process
These bullet points are, of course, in addition to all the
usual accountabilities and professional boundaries, and hopefully may help to
ensure adequate preparation for the end you always had in (the back of your)
mind.
