Question about a possible refusal for permission for a full medical?

[MrsXX]

An employee has been signed off and has been getting ssp for the past 5 and a half months. He has been signed off with a bad back (sciatca)and has said he has had 2 operations.

Last Thursday he phoned up out of the blue and said he is coming back to work on Monday. I rang the employment federation to discuss my options because i am not convinced his back won't get bad again after a couple of months as his job involves heavy lifting and twisting his back. This cannot be avoided as there is no other work he can do for 8 hours. My dp cannot do the heavy stuff for him as he is selling the business due to ill health.

The federation adviced me to write to him, providing me with a letter to send, formally requesting a full medical report from his doctor or preferably his specialist. The letter has a form attatched for him to sign, granting his permission.

If he signed it i can then write to his doctor and ask several questions about the employee's currant health and having listed the employee's duties in his job, ask the doctor whether in his opinion, he thinks the employee will be able to carry on doing these duties and whether he thinks the back problem will reacure as a result of these duties.

If the employee doesn't grant permission, what can i do next? The employee might feel fine now but i am not convinced the back problem won't reacure after doing the heavy lifting job for a few months. If i dismissed him on medical grounds, would that be classed as unfair dismisal?

Anyone?

Hang on a minute, I'm looking at this for you.

Have you recieved a letter from his doctor saying he's fit to return?

His sick note expires on the 14th so we have agreed he come back then. He has said he will get a sign off note from his doctor.

What is the nature of your business? Does it involve him doing alot of lifting?

You are able to request that he has a physical examination by a specialist before he returns to work under Health and Safety legislation.

Still looking.....

i would say that if he has to do a lot of manual work than you'd be well within your rights to demand a specific medical to see if his back is up to this. you will obviously have to pay for the medical.

Yes it involves lots of heavy lifting and twisting his back.

What do i do if he refuses to sign the form for the medical?

From what I can gather (an I may be wrong), unless you are able to A) give him another job or B) adapt his current job to accommodate his back (ie' using lifting devices etc), then you can get rid of him and it's not unfair dismissal. tribunals have allowed employers to dismiss staff if having 'robust health' is a requirement of the job, just be aware of the disability discrimination act, however, if he say's he's all better then this may not apply. You have a right to ask for a medical if you are prepared to pay for it, if he's saying that he's all better now and goes off again then this can be classed as an intermitent absence, which is in your favour as he is affecting the business and causing you serious hardship. You may need to go through the disciplinary procedure (verbal warning, then writtens), his absences could be classed as misconduct but you need to see a qualified employment solicitor about this.

As per his last absence and having him back: request full medical (you'll have to pay for this), you can suspend him from work until this is done under the health and safety at work act but only if there is no alternative employment, if he turns down alternative work you don't have to pay him. Medical evidence by itself is not sufficient grounds to get rid of him, you must look at his past work, is he good at his job? and future work, is there alternative employment availiable?
I strongly suggest that you seek some professional legal advice about this, it would be a problem for you if you had him back and he was to hurt himself again as you would probably be liable as you knew of his problem and he had not been given a medical.

If he refuses to sign give him a verbal warning, if he refuses again do the written. You as an employer require full details of his health, not just a letter of his doctor as you may invalidate your insurance if you allow him back. it's health and safety aswell, if he doesn't comply then he's obviously hiding something. Is there an absence clause in his contract? (if he is absent from work for a certain amount of time then he is dismissed)

MrsXX I can't help you with this as you would be a potential client and I'm sure you understand I can't give free advice to someone I would normally charge.

But I would draw your attention to the disclaimer at the top of this topic and suggest you do get some professional advice if you are thinking about dismissing this man at some point.

Under the Manual Handling Regulations Operations you should not be placing anyone in postions where they have to twist and lift and place themselves at risk. Could you not avoid the twisting and lifting by changing your work practices or by using mechanical aids?

If you dimissed this man but employed someone else and expected them to lift and twist heavy objects and they injured themselves they could sue you.

What work is it may I ask?

Thanks avenanap. I have sent him a permission slip for him to sign granting me permission to apply for a full medical. He has to give this to me by Friday. There is no other work for him to do and lifting devices wouldn't be appropiate in such a small place.

He isn't very good at his job as he quite often rushes to get everything done to finish early because he plays alot of golf.

Health and Safety Legislation still applies though and there is an increased risk of injuries with working in confined spaces.

Hmm, a golfer! I think you need specialist employment solicitor advice, I know it's not cheap but it'll be better for you in the long run. I hope it works out ok.

Hmm indeed a golfer. Makes you wonder...

Swing and hit! hmm. This is going to cause back problems me thinks.

Well i know this and you know this but it's proving it that's the problem. Then there's the fact he is fit and well two weeks before his ssp ends...

Hmm, no proof though. I was under the impresion that sciatica was a permanent problem and it takes a very long time to recover from an operation. I used to work in a hospital and I was told that it takes about 2 years for all of the muscles to completely recover. I'm not surprised you want him to have a full medical, be prepared for him not to though.

Well he told everyone different stories about having an operation. He is known by everyone for being a compolsive liar. He used to come in every Friday to collect his money on crutches. Not sure why because i would have thought the doctor would have known that crutches put strain on your back.

Then there was the story of how he fell and knocked himself unconcious at home in his bathroom. He said the fire brigade had to come and air lift him out the window because they couldn't get him down the stairs on a normal stretcher because of his back

After that he said he had to go straight to hospital for an operation on his back. He went in on a Tuesday, my dp phoned the hospital on the Friday and they said he had been released. Dp spoke to him the following Tuesday and asked when he came out of hospital, he said Monday! Dp told him the hospital had told him he came out Friday and he just did alot of "erm" "um."

Hmm. Document it all and then go and see the solicitor.

avenanap, the icing on the cake was when my dd was born. The employee's wife had their first child at Easter 2005. Our shop is closed Good Friday and for the whole of the following week and the Thursday before Easter is our busiest day of the year. His wife had the baby on the Monday before Easter and the employee wanted the whole week off. My dp said he could have the Tuesday and Wednesday but said he had to do the Thursday because we couldn't manage without him. He was getting good Friday and the following week off anyway but the employee got the hump about doing the Thursday.

In 2006 my dd was born. The day after she born the employee phoned in sick with a 'bad back' and didn't return for 2 weeks. My dp had to cover him doing 4am starts and 5-6pm finishes plus having a newborn to contend with.

The employee told another employee's wife that he had done this as 'pay back'!

That was a very difficult time for me because dp will work no matter how tired (his health now is detereating hence us selling the business) he is and will get on with it. I on the other hand needed dp's support and suffered pnd because i was left on my own all the time with dp doing such long hours.

It seems the law is there to protect the employee all the time but no law to stop employee's doing what this guy does to protect the employer.