Sick Note but OH says able to work

[ModreB]

I have an employee who has had a lot of time off sick. Currently has a sick note that covers until the end of January 2012. This sick note states that the person is unfit to work due to a physical issue, not stress or depression.

We also have significant issues with general performance, attitude, work ethic etc etc.

Referred to Occupational Health, and the OH Dr (not nurse) has sent a report saying that he can see no reason that this employee is unable to work. OH report also said that they could find no evidence that the stated physical issue would prevent this person from working.

HR and I are meeting with OH next week, but just wondered if anyone knows where we go from here. Does a sick note from 1 Dr bear more weight than an opinion from another Dr?

If their Gp says they are unable to work then you can't do anything to force them to.

Performance issues should be dealt with as a separate issue. What have you done about them to date? Improvement plan? Disciplinary?

Yes, they are on an improvement plan and requested additional training, which was agreed but just went off sick on the day the training should have started and as it is an ongoing course will now have to wait until the next course starts next year.

Also had monitoring reviews, but then refused to sign them off as did not agree with the minutes of the reviews, or the issues that were raised, despite there being other people there who did agree that the minutes are a true record of what was said.

They have been offered adjustments/other duties to allow for the physical problem, but the duties that they agreed they are able to do will not be affected by the adjustments that we have offered (and have agreed to what has been recommended by Access to Work report)

For instance, they have been offered a dedicated workstation and this will mean that the only part of the job that they can do involves typing and data input, but have refused to do typing and only want to do switch and reception duties, which mean that they cant have a dedicated workstation as they only work part time and other people have to cover switch/reception when they are not there!

I am new to the organisation, although have managed staff for some time, but I have never come across anyone like this, apparently being deliberately obstructive in this way.

I was under impression that if OH says they are ok to work then you can potentially use that as a reason to pay SSP only (if your contract terms are such that this is an option) but GP note trumps OH recommendations and you can't ask them to come back to work.

I don't know the law but if you have evidence of obstructive behaviour and warnings given and a medical report that this employee is not as ill as s/he claims, just sack the fucker for poor performance, no improvement, and bad attitude.

can you get a second medical opinion, you pay ofcourse?

Solid I sometimes wish I could but there are hoops to jump through first.

We are going to have to go down the disciplinary route I think, which is going to be a mare.

Jus sacking them leaves you open to being sued if they've been here over a year.

Hairytale and stillsquiffy are wrong, the fit note is for ssp only, as a line manager you can choose who you go with GP or OH but the rule of thumb is if you have an OH you go with their recommendation, this is excepted in law.

It wouldn't matter if the report from OH had come from a doctor or nurse, we carry equal weight.

don't do anything until your meeting with OH and HR next week they will guide you.

but it looks like you have offerd reasonable adjustment and it has been refused so you can start a capability process, as you appear to have a valid reason why you can't have a dedicated workstation for reception.

It is not uncommon to come across people who are so keen to excercise their rights and become completely deluded to what their rights actually are and employers are so petrified of being taken to tribuneral they put up with all sorts of unexceptable behaviour which just enforces this idea.

Also it would not be considered unreasonable if they any work they could do was graded at the same grade as other people doing it, so if she was paid more due to their Data input role and they are not doing this, you can pay them at the grade of receptionist obviously this works the other way too.

I think that a large part of the problem is that this person has been allowed to get away with this sort of behaviour for years, using the fact that they have a physical problem as an excuse for both the sickness absence and the performance issues.

And then I come along, and unfortunately for them, know a lot about this physical condition as the same condition is common in my family. I know the symptoms, the side effects, medications, terminology etc etc. And this employee has basically been pulling the wool over their eyes.

So I challenge the performance issues and the behaviour and the excuses behind it, they go off sick, and here we are.

It's very frustrating.

In my company if our oh says someone is fit we go with that advice I would advise you to meet with the employee go through their ailments how it impacts their ability to return in their view and try to find a short term compromise to allow for them to return on light or amended duties. If they refuse to return then you could consider disciplinary action for failing to return to work/failing to comply with a reasonable instruction which could be construed as gross misconduct.

The other thing I'd do would be to request access to their own gp so you can enquire directly with them why in their view the employee I'd unfit for work. I'd provide a breakdown of their role and activities and see if they can provide reasoning. It will need the employee permission and will cost you a they will charge for a report it also could take weeks to get a response but you may find it worthwhile?

Well, I would love to get a justification from the GP. If you saw the reasons put on the sick note........... Which I can't post here as it could potentially ID the employee.

I can only compare it to someone stubbing their toe, then stating they are unable to walk for a week.

They are already on light duties, only actually doing one small part of the job and saying that they are unable to do the rest.

See if OH can obtain further info from the employee's GP to further clarify. But if OH have stated they are fit to work, that would surely be taken over the GP's fit note as GPs are not occupational health assessors and may not have the needed background to make a relevant assessment.

Did you say the e'ee agree to the ATW recommendations, and did ATW recommend specialist equipment (they usually pay a %age of the cost)?

Bark the problem is that if we put in the ATW stuff, this should allow the employee to do the other bits of the job that they are not doing at the moment.

But before we put in the stuff, they need to be trained in how to use it, to make sure that they are able to use it effectively, and that it is appropriate for the environment in which it will be used, and they went off sick when they were supposed to be doing the training, so until this is done they cant have the equipment, but wont come back to work to do the training!

We have asked for reports from the consultant that they see, so will have to see what happens until then.

They have also refused to do something the OH advised to help them get back into another part of the job that they are refusing to do, phased over a period of weeks to see if they could build up into it. Just totally refused to even try. I wouldn't mind if they had tried then couldn't manage it. I think that this person wants to do certain parts of the role and not others, and will be as obstructive as possible when challenged about this.

OK, everything you do from now on, start from the viewpoint that the employee is a lazy, dishonest piece of shit that you want to get rid of. It clarifies the mind wonderfully when you know that the aim is to get rid of the person. This employee has (from what you posted) clearly been lying, lead-swinging and skiving for a long time, so focus all your (and the organisation's) efforts on getting rid of the employee.

The Occupational Health specialist (Doctor) has specialist training in work related health issues. The GP doesn't.

I would always take OH advice above a GP's, and most ET would as well.

I would personally be cautious about advising an employer to take action against someone based on conflicting medical reports. Yes the OH has specialist training which the GP doesn't and yes a tribunal may give more weight to OH advice than GP advice however the aim has to be avoiding a tribunal being given the responsibility of deciding.

I'd get a third opinion from another OH specialist or the consultant as you are doing OP. If it's one doctor against another, especially the GP who knows the medical history/employee against an OH specialist who has seen him/her once, the employee is pretty likely to challenge it. If faced with two specialist reports they are more likely to think challenging it isn't such a good idea.

I would meet the employee and ask their Gp to give Oh a medical diagnosis re why off work etc If employee refuses then I would ask him to see another Gp. If he refuses then I would go along with OH advice after all you pay for oh and you appear to have done nothing wrong.

It seems that everything the OP tries in order to clarify the situation is deliberately obstructed by the employee, who starts whining that s/he is poorly again. So the OP's aim should be to get rid of the person as quickly as possible.

OK, had the meeting with OH/HR/Employee today and we are going down the capability process. Employee did attend, but then said that they wanted union reps to be present, which they needed to arrange and had failed to do, so more delaying tactics as once they said this we could not continue with the meeting.

However, HR and OH said that we don't need to meet again, we will just get on with the process. Improvement Notice issued in June, Improvement Warning issued in November, so just need to issue Improvement Final Warning, then proceed to Capability Hearing which if employee does not come back to work, or disputes OH advice, will result in eventual dismissal.

OH also said that Medical Retirement on the existing evidence, will not be approved/advised, which is what I think the employee is aiming at. Reports from the consultant have been received by the OH Dr.

Reasonable adjustments are in place, so if they chose to do so, the employee could come back to work tomorrow, based on OH advice, but are declining to as they say not fit for work.

ModreB glad you have got a clear path to follow and thanks for the update.
It also sound like you have a good employer as they really seem to have tried to help the employee.

Op you have just catapulted me back to my management days

Have to say whilst my HR experience will always go with hairy I'm afraid I did have moments like SolidGold.

My advice having been there done that is to carry on and buckle up. You know what they are doing, they know that you know but you can't say it like you would like too.

Gp reports would be useful but yes you need the persons permission, it's in their interest if they want to work as otherwise you will have to make decisions based on tge info you have.

My prediction is you will carry on with the process, seems like your HR dept is ok cause you haven't complained about them, and before you dismiss they will resign. Keep the faith, follow the process and remember that whilst almost all people go to work and want to do a good job there are some who don't and will throw everything they can in to get tge spotlight away from them.

Good luck

Sorry Gp note does not trump oh doctor. It does not even trump oh nurse in tribunal. If you can implement oh advise, it's perfectly reasonable to expect employee to comply. If they refuse, they may continue to get ssp, you can withhold occupational sick pay. Oh doctors are firstGP's, who have specialised in work issues

Good luck MoreB.

Also you might notify the employee if you have not done so previously & elsewhere that meeting invitations are management instructions, disobedience of which entails its own consequences. (So, potential disciplinary/conduct issue?).

There is no 'trumping' of one doctor over an another.
GP has advised employee refrains from work and issued fit note to enable SSP claim. GP's only motive is to act as his or her patients advocate.
OH practitioner (doctor or nurse with presumably relevant occupational medicine qualifications) has made an objective assessment of this employee's health in the context of their job description, potential reasonable adjustments and sought medical information form treating consultant. OH motive is to give balanced objective advice to both employee and employer with a goal of enabling people to remain in gainful employment where possible.

As employer you choose which source of advice you want to follow - the two or three words on the fit note or the detailed report from OH and AtW. As others have said, ETs accept that it is reasonable for the employer to choose to follow the advice of your OH advisory service (which after all you pay for this very purpose). Don't try and contact GP again for more reports, this drags things on, you know what you are going to get back. Have confidence in your OH advisor, and your HR team and proceed with your internal proceses.

It is typical that strong managers often end up unravelling years of under the carpet brushing in these type of situations.To me it looks like youve done the hard bit and actually got practical independent advice on this persons limitations and reasonable adjustments, so you should continue with your intent to implement them.
Tempting I am sure to allow your personal viewpoint of this employees motives to colour your approach to them, but of course your actions need to be above reproach.
HTH.