Is a sick note sacrosanct?
SEPTEMBER 2009
Katee Dias in our employment team answers a question about a fictitious employee's claim that she is ill, which raises a number of important employment law issues
Q: I think that one of my employees is trying to pull the wool over my eyes. She has provided me with a letter from her doctor saying that she suffers from panic attacks. However, I don’t believe her. Do I have to take the doctor’s word for it or is there a way to investigate further?
The doctor is, of course, the medical expert in this situation and therefore you should not disregard his note simply because you do not believe that your employee suffers from panic attacks. However, there are additional investigations that you can make.
Firstly, you could seek your own medical advice from a company-appointed medical advisor. In your case, you may wish to seek advice from a doctor who specialises in panic attacks so that you can get an accurate diagnosis of your employee’s condition. It is normal that you bear the cost of any such examination as it is being undertaken on your request.
However, note that usually you cannot compel an employee to undergo a medical examination and therefore you would need to obtain her express consent to such course of action. Also, if the company-appointed adviser needs to obtain the GP’s report, you will need to obtain your employee’s consent for the disclosure of such report having regard to the requirements set down by the Access to Medical Reports Act 1988. Finally, it is extremely important that you do not disregard what your employee and her doctor are telling you. To do so, could lead to a constructive dismissal claim as suggesting that your employee is lying is a serious allegation which, if unfounded, would breach the trust and confidence that exists between you.
Secondly, you could consult with your employee about her condition and the content of the doctor’s letter (and subsequent medical reports, if any). If there is medical evidence supporting her claim that she suffers from panic attacks, you should also consult with her to see whether any adjustments are needed to her role and/or working conditions. It may be that nothing is actually needed as the severity and number of panic attacks varies widely from person to person.
However, do always bear in mind your obligations under the Disability Discrimination Act 1995 if the condition is classified as a “disability” for these purposes. Again, medical opinion will help you to ascertain whether her condition is a disability for the purposes of this Act.
Thirdly, you may wish to consider some form of covert monitoring, such as hiring a private investigator. However, this should really be a last resort as monitoring of this type should only be undertaken where it is a reasonable and proportionate response to the concerns you have about an employee, for example, where you suspect criminal activity or equivalent malpractice. There are various data protection issues to consider when carrying out covert monitoring and you also need to bear in mind the potential claim of constructive dismissal as, arguably, such monitoring undermines the implied duty of trust and confidence.
Finally, remember that if you are able to show that your employee is lying about her condition, you can treat this as misconduct and take appropriate disciplinary action (after following an appropriate and fair disciplinary process with her).
If you would like any further information about the issues raised in this newsletter, or any other aspect of employment law, please contact Katee Dias on 0207 404 0606, or any other member of Goodman Derrick LLPs Employment Department.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. |
