Conflicting medical advice and withholding company sick payPosted in : Seamus Says - Employment Law Discussion on 18 October 2017
Q. If after a referral, occupational health states the employee is fit to work but their GP still issues a fit note saying they aren't, can we withhold company sick pay and/or just pay statutory sick pay?
Seamus: This is similar to a query that we had last time that was in relation to when you have two conflicting pieces of medical evidence. On this one, I have to say that I would consider the occupational health report a more independent report, but I just don't think that it's as simple as saying our occupational health doctor has been clear and you're required to come back.
The general position should be that whenever you receive the occupational health report, copies, should be sent to the employee. Sometimes they're already sent to the employee by the doctor and you arrange the meeting with the employee and at the meeting, it should be explained to the employee that they've been declared fit and they're expected to return to work and the date should be given and that should all be agreed.
If any subsequently receive a GP, fit note to say that the person isn't fit, you need to do two things. You need to carefully consider what the fit note says because it could be a new ailment or a new issue that has arisen that might not be related to the old one. Second of all, I think you need to investigate that. The investigation should absolutely involve engagement with the employee and I think that's the key to dealing with these matters is keeping engaged with the employee.
I know that can be difficult at times and the employee sometimes can be a bit avoidant and you're also worried about harassing the employee, but engagement on a fair basis is the best way to proceed. If the position is that it is the same ailment and you have conflicting evidence, I think my advice at that point would be don't withdraw the sick pay that's there.
Again, I don't really see a distinction between we're not going to give them company. We'll just give them statutory. I think you must go back to your contract and read what the contract says and be clear about that.
But I would be taking the fit note and possibly sending a copy of that on the occupational health, the same doctor and asking for comments and if the occupational health doctor is clear in terms of the position, that the employee is fit, it's about coming back to the employee and saying, "We consider you are fit. We expect you to return to work," and if the employee didn't return to work, you would have the option then of either withdrawing the sick pay and or looking at possible disciplinary proceedings on that basis.
So, it's really about making sure you are covering your bases here. You're not taking any rash decision in terms of it and you're acting fairly and reasonably.
Scott: You've kept your records, so we've been acting reasonably. We've gone in there with an open mind. Even if you think they aren't swinging the lead. You keep your open mind and go through the process.
Seamus: Yeah. I think it's about building your case and making sure you have taken the appropriate steps of going back to occupational health or getting to the bottom of what the issue is with the employee. Again, I have a tendency that occupational health is more independent.
More on Sickness & Absence
- Email/System Access for Long-term Sick Employees; Dismissal During the Probationary Period; Dealing with Sickness Patterns
- Can an employer treat maternity-related absences in the same way as standard sickness absences?
- In Brief: Important Updates from October 2018
- Mr A Hawkes v Ausin Group UK Ltd 
- Does an employee have rights while off on certified sick leave?
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