Should advice, i.e. a reasonable adjustment provided by occupational health specialist doctors be used or can it be disregarded?Posted in : Seamus Says - Employment Law Discussion on 6 April 2018
Q. Reasonable adjustments come up again. Should advice, i.e. a reasonable adjustment provided by occupational health specialist doctors be used or can it be disregarded? Is there any case law substantiated?
Scott: So, this is where an OH referral, we've heard that, and the occupational health person says, "You know what, Seamus, you've got to do something to accommodate this person." It would be silly to ignore it.
Seamus: I've had a similar case in the tribunal about two years ago where the employer didn't take the advice of the occupational health and we actually brought the occupational health doctor with us to the hearing. It's a bad mistake to make. I think it's different if you get a report to where you think that it's entirely unreasonable or where it's flawed in terms of its facts or something along those lines. I would say get a second opinion at that point, get another report from somebody else.
But where there are no such problems—the reason you're sending the employee to occupational health is for the employee to be independently reviewed and you're asking for advice from the occupational health doctor. Don't ask for advice that you're not going to take on board or accept is probably the issue there. You'll really have a struggle to justify in a tribunal as to why you hadn't implemented adjustments that have been suggested by occupational health. It may be that you might not be able to facilitate those adjustments, but you certainly have to give them serious consideration and it may be that they're not reasonable at that point.
Scott: So, the occupational health said you've got to put in a lift and you can't afford a lift or it's an old building and you're not allowed to change it, that would be fine. But if they were to bring them back some kind of part-time basis or something like that, you would be silly to ignore that.
Seamus: Absolutely. I think you'd be heavily criticised at a tribunal or a court process if that was what your view was.
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