Advice for Employers – Where There Appears to be a Conflict Between GP Advice and Occupational Health Advice
Situations sometimes arise where an occupational health (OH) report seems to be in conflict with the statement on the GP certificate (Form Med 3).
In March 2013, the Government issued new guidance on the Fit Note which allows an employer to give precedence to the views of an occupational health practitioner over those of a GP.
This means that employers may, in principle, be able to prefer to accept the opinion of occupational health over that of the GP Fit Note as to whether or not a person is potentially fit to return to work.
When an employee produces a ‘Fit Note’ indicating that they are fit for some work, an employer may consider them as being unfit for all work if they cannot accommodate the recommendations made by the GP on the ‘Fit Note’.
Alternatively the employer can consider that an employee could do some work when they have been assessed as not fit for work by their GP.
These are issues which could benefit from the impartial advice of an occupational health practitioner in assisting with the decision making.
Remember, the ‘Fit Note’ is only an advice note provided by the GP.
Occupational Health Practitioners:
Occupational health practitioners have a duty to provide impartial independent medical advice. The OH practitioner will often understand the type of work the employee performs better than the GP, as occupational health practitioners visit workplaces and as part of their training are trained in understanding the types of work that individuals perform. It is likely that the occupational health practitioner will have a better understanding of the employee’s role and responsibilities. Any advice given by a GP will usually rely entirely on the employee’s version of events.
Frequent changes to employment legislation and growing levels of employment-related litigation make Occupational Health a useful business tool.
Myths / Misconceptions:
1. A common myth about the role of Occupational Health is that OH practitioners will diagnose and treat employees’ medical conditions.
This is not the case. OH practitioners work on medical facts supplied to them as well as the opinions of the referrer and the employee, to produce independent advice about fitness for work, using their in depth knowledge of workplaces and work demands. Their role is different to the role of the GP.
2. Another myth is that OH practitioners are not impartial and will ‘take the side’ of the employer.
This is not true and OH practitioners have a duty of care and a professional code to follow which means they have to remain impartial and independent at all times.
3. A misconception is that the advice offered by the GP on a ‘Fit Note’ must be followed.
This is not true and employers should view the Fit Note as an advice note and should determine if they are able to accommodate the advice given by the GP.
In cases where there appears to be a conflict of opinion between the employees GP and the OH practitioner, employment tribunals have in the past in the main accepted that a ‘reasonable employer’ can rely upon the view of the occupational health specialist doctor or nurse.
The cases supporting this view are:
• Jones v The Post Office (2001) IRLR 381
• British Gas plc v Breeze EAT 503/87
• Evers v Doncaster Monks Bridge
• Jefferies v BP Tanker Co Ltd (1979)
• First Manchester Ltd v Kennedy (2005 UKEAT/0818/04)
• Heathrow Express Operating Co Ltd v Jenkins (2007 UKEAT/0497/06)
However case law outcomes have stressed the importance of the following:
1. The OH practitioner should have appropriate qualifications and training in occupational medicine.
2. The employee should be personally examined by the occupational health doctor or specialist nurse and the decision should not have been made merely on a report or on the basis of a review of the medical notes.
3. The written report by the occupational health specialist should be specific and clear.
4. If the employee has been treated or is being treated by a hospital specialist, there should be a current report on file from the specialist concerned.
5. When making a decision with regards to conflicting medical advice, it is important that the employer has established that returning an individual to the workplace would not pose a serious threat to the health and safety of that employee or to the health and safety of colleagues, visitors to the site or the general public.
Employers and HR:
The government guidance of March 2013 states that the ‘Fit Note’ is classed as an advice note, and it is for employers/HR to determine whether or not to accept it. The guidance continues by saying that in situations like the ones described above, it is the employers right to gather other evidence about their employee's fitness for work from other doctors or healthcare professionals.
The significance is that the employer can choose to give this other evidence precedence over the advice in the ‘Fit Note’.
However, the employee may disagree and if the employer chose to dismiss, the employer may have to demonstrate to an Employment Tribunal why the alternative source of evidence was more acceptable than the ‘Fit Note’.
Employment lawyers have advised us that employers are in a stronger position if they have clear written policies and procedures in place to deal with matters arising from this situation e.g. handling of occupational sick pay, disciplinary processes etc. We would therefore advice employers to have clear written policies and procedures in place when dealing with potential conflicting medical advice about fitness for work.
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