What is the process if someone is unable to perform their role due to a medical condition?

Situations that involve medical capability are always complex, as each condition can impact a person in different ways, and each individual person will deal with / manage their conditions in different ways.

The first thing that you have to remember is that if the employee has a condition that could potentially fall under The Equality Act 2010 as a disability, then the employer is under a legal obligation to ensure in the first instance that reasonable adjustments are considered and implemented. This can include but not limited to:

• Specialist equipment to perform their role
• Flexible working – both hours and location
• Making physical changes to the working environment
• Phased return to work should they have a period of time off
• Additional training opportunities as well as recreation and refreshment facilities

The Equality Act says that a disability is a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day- to-day activities.

There are three conditions that will automatically fall under The Equality Act 2010 as a disability:

1. Cancer (even in remission)
2. HIV
3. Multiple Sclerosis

For the purposes of the Act, where the person is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist, they will be classified as disabled.

As well as conditions that fall under The Equality Act automatically as a disability, there are also conditions that won’t be counted as a disability under the Act:

1. a tendency to set fires,
2. tendency to steal,
3. tendency to physical or sexual abuse of other persons,
4. exhibitionism, and
5. voyeurism
6. addiction to alcohol, nicotine or any other substance (unless the addition was a result of administration of medically prescribed drugs or other medical treatment)

Starting the process

Where a person has been off for a period of time, be that short term or long term due to a medical condition, it is always best practice to carry out a welfare meeting to get an understanding of the condition, how it is impacting the person, and whether the company can put in place any reasonable adjustments to support the employee. It is also a meeting where both parties can put across their concerns and anything that might be on their minds at that time with everything that has been going on.

It is also at this meeting that the employer can ask for consent to get a medical report to support their understanding of the condition and what they can do to support the employee (if anything) and start to put that support in place.

How to put in reasonable adjustments?

Most business owners and managers won’t have a medical background, so trying to understand what needs to be put in place to support an employee with a disability could be quite difficult. There are two ports of call that the employer can look to when looking at what is needed to support an employee with a condition:

1. The individual’s GP or a medical specialist
2. Occupational Health

Each route has their pros and cons when considering what support can be put in place for the employee. For example, the GP may not have a full understanding of the working environment, and therefore their ability to suggest what equipment may be needed could be limited. On the flip side, Occupational Health might not have a full understanding of the individual’s medical condition and their medication history, and this could limit the recommendations they make that could support the person’s health in the long run.

What if there is nothing that can be put in place?

There will be situations that arise where the medical report from either the GP/medical professional and/or Occupational Health will outline that there is nothing that can be put in place to support a return to work for the employee.

These situations do occur often, and the employer needs to be sure that this is exactly what the medical advice is outlining. This could involve going back to the medical professionals and getting clarity over each point that has been raised and ensuring that all questions have been answered.

Should this be the situation, then the next step would be for the employer to organise a Medical Capability Hearing.

The Medical Capability Hearing

Should the decision be that the company needs to bring the employee to a medical capability hearing, there is a scripted route that would need to be followed to show that the company has acted in a reasonable manner:

1. Formally invite the employee to a medical capability
   1. Provide the medical evidence
   2. Allow them the right to be accompanied as per Section 10 of the Employment Relations Act 1999. Given the medical circumstances, it could be reasonable to extend the right to be accompanied to friends or family members
   3. Outline that the possible outcomes could be a termination on the ground of ill-health
2. At the meeting, review the medical evidence with the employee and get their input into what the medical professional(s) have outlined. If they disagree with the report, get as much detail as to why this is the case for the company to make further investigations afterwards.
3. Take verbatim minutes of the meeting and have all parties read, sign and date them at the end so that there can be no dispute over what was discussed at the meeting
4. Should any party wish to record the meeting, consent will need to be sought in line with GDPR Regulations

The difficulty lies in the decision from the company after the meeting, especially if the employee doesn’t agree with the medical report. The company has to weigh up all the evidence and information, and make an informed decision about whether the employee will be able to carry on their role when taking into account the reports, and whether any reasonable adjustments can be put in place. The company also has to weigh up whether adjustments that have been recommended are actually reasonable, and if not, documenting why not, ideally with evidence.

No two situations are ever the same, so it is difficult for you to refer yourself to other decisions and match it exactly to yours. You have to ensure in this instance that all your actions are within the band of reasonable responses, and that you don’t inadvertently discriminate against the individual by not carrying out your legal obligations under The Equality Act 2010.

What happens if the decision is to dismiss on the ground of ill-health?

If the decision from the company is that the medical evidence suggests that the employee is no longer medically capable of carrying out their role, and that no adjustments can be put in place to support this, then the decision may be to terminate the contract of employment on the grounds of ill-health.

In this circumstance, the employee will be due their notice in line with their contract of employment. There are two scenarios that can occur with the notice period:

1. Protected notice – This is where the notice period is in line with statutory notice, i.e. a week per year of service. In this instance, the notice period needs to be paid at the normal renumeration the employee should have been receiving would they have been at work.
2. Unprotected notice – This is where the notice period is a week or more above the statutory notice period. In this instance, the employee’s notice is unprotected, and they will only receive SSP.

The outcome of the employee should ideally be given both verbally and in written form. When placed into written form, the company should detail the reasons for their actions, and where appropriate, refer back to the medical evidence and any other evidence that they had to hand that led to the decision.

Within the outcome letter, the employee should be given the right to appeal. Whilst you may not have a specific policy or procedure on medical capability appeals, you should refer to your disciplinary appeals and use that as best practice. Should you have neither, then refer to the ACAS Code of Practice which recommends 5 days.

What if the employee appeals the decision?

In the event that the decision has been to terminate on the grounds of ill-health, the employee should be given the right to appeal. Given the nature of the original dismissal, and how closely linked the circumstances could be to a disability and therefore, a wrong decision could be seen as discriminatory, it would be best practice to always hold the appeal by way of a re-hearing.

In the first instance, you need information from the employee as to why is it they are appealing. Why do they feel the original decision is wrong? Do they have some new medical information that the company didn’t have beforehand? Have they got a second opinion that contradicts the original medical professional? All this needs to be carefully considered in the appeal.

When conducting the appeal hearing, treat it like the original medical capability hearing. Go over all the evidence that was available at the time and incorporate the new information (if any) that the employee has added with their appeal. If there is new evidence available, you may need to take this away and look into it further and ask more questions where appropriate. If the employee has managed to get a medical practitioner to disagree / override the previous report that suggested termination on the grounds of ill-health, you may need to consider getting another report as a way to determine which report is more accurate, a tie-breaker for want of a better term.

Take verbatim minutes of the meeting, have all parties read, sign and date them again to ensure there is no dispute what everyone said. If you are recording the meeting, you will need everyone’s consent under GDPR regulations.

Once all this has been reviewed, and all information gathered that is appropriate to do so, the decision can then be made. Once again, I would recommend that the decision is given verbally to the individual, with a summary of why this decision has been reached, and then followed up in a detailed letter.

If the decision is to re-instate, then what reasonable adjustments need to be put in place to ensure that both parties don’t find themselves in a similar situation down the line. If the decision is to re-instate, I would say that one of the medical reports obtained by either the company or the employee will give some indication of what adjustments are required.

If the decision is to uphold the original decision of termination on the grounds of ill-health, then the employee has no further avenues of appeal. If they still feel strongly that the original decision is the wrong one, their next course of action would be to go to ACAS and submit a claim to the Employment Tribunal. Given the nature of the termination, as well as potentially unfair dismissal (if they have more than two years’ service), the individual will likely submit a claim for discrimination. That is why it is so important to ensure that all your decision-making throughout has been spot on.

What happens if the employee refuses to consent to a medical report?

If it is the situation that an employee has been on long-term sick, or is having a lot of sporadic short-term absences, as per the above information, the company should seek consent during a welfare meeting to get access to a medical report to support them in their decision making.

In the scenario that the employee refuses, I would advise that the company asks them to reconsider, and outline that without their consent and this information, the company is having to make decisions without all the information specific to this situation, and will have to base any decision making on the evidence and information they have access to, which could be limited.

Should the employee continue to refuse, as is their right, then the company just has to ensure that the decision-making throughout any process is focussed on the information and evidence that they have available. Throughout any formal process, and in any formal meetings, I would be putting the option each time for the employee to reconsider their refusal. By doing this, the company is demonstrating that they wanted to make the decisions with as much information as possible and that they gave the employee every opportunity to provide them with more detailed information, but it was the employee that was refusing.

To find out more about how NORi HR can help with the process regarding medical capability, contact NORi HR & Employment Law on 01254 947829 or use our online contact form and we’ll get back to you as soon as possible.