An employee has gone off sick with stress on initiation of disciplinary proceedings. Can we proceed anyway?Posted in : Seamus Says - Employment Law Discussion on 3 August 2018 Issues covered:
Q: "If we suspend someone pending a disciplinary or if they go home at the start of an investigation and claim the whole issue has stressed them and they obtain a medical certificate for work-related stress, how long before we can force the issue and proceed anyway?"
Scott: That's typical. Somebody does a runner at the start. What would you recommend there, Seamus?
Seamus: Usually, the concern for employers will always be that the employee goes out on sick and you have lost control of how to deal with the matter. The best way is contact the employee, and you can say to them, "I appreciate that you're sick, but can you confirm if you're able to attend meetings to discuss this?" They may say, "No, I'm not because the whole thing stresses me out, and I don't want to do that."
The next protocol really for me is that you would send them to occupational health, and specifically within your request to occupational health, you would ask the occupational health to give an opinion as to whether the person is fit or not to attend investigatory or disciplinary meetings.
Scott: Yeah. It's fit to attend. It's not fit to do the job. It's fit to attend those particular meetings. That's different from whatever job they're doing.
Seamus: Exactly. In my experiences, I wouldn't say the majority of times, but certainly there's a good record of the occupational health doctors saying they're unfit for work, but they are fit to attend meetings. You often see it's recorded in the reports to say that the work issue is causing the stress, and the stress won't be relieved or worked through until the employment issue is resolved. The only way to resolve that...
Scott: Is by having the investigation and the disciplinaries or whatever it happens to be, a grievance in this case.
Seamus: Exactly. So you want to avoid that going around in circles. And certainly where the occupational health comes back and says they're not fit to attend meetings, then I think you want a time frame of when they're going to be able to attend meetings.
Scott: It could turn into how long is a piece of string?
Scott: But the bottom line is that if you've been doing any kind of return to work-type interviews, so there's no record on the personnel file that the person has been stressed, then it's quite valid to point out you aren't stressed or there is no evidence you were stressed until this issue came up. Now, it will be stressful. Most of us have never been disciplined at work. So, if anything like that happens, it will be incredibly stressful. But I think you do have to point out to the individual, look, if you want it resolved, you have to come in at some stage.
Scott: But I don't know that we can get answers about how long that is going to be. It will depend on the circumstances of the case. If you push it too quickly and if it's seen to be management bullying, then you're not going to come off well in a tribunal if you go ahead and dismiss anyway.
Seamus: No. Just from my own experience, I had a case a number of years ago where (my client was the claimant) the occupational health doctor said that the employee wasn't fit to attend the meetings and had given a time frame of when there was to be a period of review and expected that at the period of review that he might have improved sufficiently in order to attend meetings, but still wasn't fit to return back to work. And the employee proceeded on with the meetings in his absence.
They did give alternatives. They did suggest that the trade union rep attend or that he could put in written representations to the meetings, but the client just wasn't fit enough to do written representations. The tribunal did take a dim view of it and it's in the judgement.
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