I suspended an employee this week and have written to him asking him to attend a disciplinary hearing next week. Today I have received from him a doctors fit note declaring him ‘not fit for work’ for four weeks with depression’. Does being signed off on sick leave make him automatically unavailable to attend the hearing?
Fitness to attend work and fitness to attend for a disciplinary interview are not the same thing and can be considered separately – an employee may be unfit for work but fit to engage with a management process.
However to assess this you would really need to ask your employee to attend for an interview with an Occupational Health practitioner if you have access to one. They are qualified to assess whether the employee would be able to properly engage with the hearing and whether their ‘depression’ would potentially be exacerbated by attending. Often the OH practitioner can contact the employees GP and discuss the possibility that the employee’s symptoms will be likely to worsen if the case remains unresolved. In this way sometimes the GP can be persuaded to support the employee attending the hearing. You would need to be guided by the OH report.
If you cannot arrange a report from an Occupational Health practitioner, then as an alternative you might ask the employee if you, as their employer, can seek access to a report on their condition from the doctor concerned. However to avoid the risk of breaching your employee’s right to privacy and also possible breaches of the Data Protection Act / General Data Protection Regulation, an employer should ensure that any request for a medical report is focused and limited only to the particular purpose for which it is obtained. You can only apply for a medical report if you have notified the employee concerned in writing that you would like to make an application, advised them of their rights (to withhold consent or see the report before the employer) and then obtained that employee’s written consent to the application being made.
If you cannot arrange a report from an Occupational Health practitioner / Doctor as outlined above, then you would not be in a position to assess the risk to the employees psychological health of insisting they attend the hearing. This could be costly if at some future point they make a claim against you for psychiatric injury caused by the stress of the procedure (although recent case law has tended to favour the employer in this regard e.g. Johnson vs Unisys).
In my view then your course of action is as follows:
1. Seek guidance from an Occupational Health Practitioner as above.
2. If you are unable to access such OH services then seek the employee’s permission to ask for a report from the Doctor concerned and in the letter to that Doctor include details of the individual’s job role and the specific questions you would like answered about his condition as it relates to his employment.
3. From either the OH service or the Doctor you should specifically ask whether the employee would be fit to attend a disciplinary hearing whilst signed off sick (and if not when he would be likely to be fit for that). You should then change the date of the disciplinary hearing based on the advice you have obtained.
4. If the OH / Doctor’s report is non-committal with regard to a date, and if the employee continues to submit ongoing GP Fit Notes after his current one, you can try writing to him/her suggesting that it would be to everyone’s benefit for the hearing to go ahead as it was obviously causing him/her ongoing distress. You can offer them the option of having the hearing away from the office and the right to be accompanied by a work colleague or trade union representative (you could if you so wish extend this to allow a friend / spouse to also attend for support only). You should set a provisional date and invite them to confirm attendance.
5. At the end of the day, if they continue to submit GP certificates and refuse to come to the disciplinary hearing (and or course their work), it would be reasonable to then look at terminating their employment on the grounds of capability (see here for the fair reasons to dismiss).
Article updated April 2018