What action should be taken if an employee with a poor absence record refuses to attend an Occupational Health Unit? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills and Reeve, share their legal advice.

The question:
"We have an employee that has well met the trigger points in our sickness absence policy and has had a formal review meeting with their line manager. The reason they gave for their level of absence was that they thought they were more susceptible to picking up bugs than others – but they had taken no action to overcome this. They have had eight occasions in eight months, [which amounts to] 13 days. They were told next time you are off sick you will be referred to OHU. This has been duly done and they flatly refuse to attend the OHU appointment as they 'don't want' to go.

"Our policy reserves us the right to require that they attend OHU appointment – but doesn't specify what happens if they refuse to go. Can anyone give me the benefit of their wisdom having dealt with a similar employee situation? Let's say this employee has not been the most committed member of staff we have ever had and currently has a disciplinary warning for repeated failure to follow the sickness absence reporting procedure."

Becca Cleare

The answers:

Martin Brewer, partner and employment law specialist, Mills and Reeve
Becca, you have a situation where an employee is refusing to cooperate with you and that, of itself, can amount to a breach of contract and therefore 'misconduct'. However, you may also have a 'capability' issue simply as a result of the persistent absenteeism.

It seems to me that you at least need to make this employee aware that you take this behaviour seriously and that may mean going through a disciplinary procedure. You should consider whether to run with both issues at all, and if so, whether to combine them in one set of proceedings (and you should check you written procedures to see what is achievable in this sense).

It is unlikely that there is sufficient reason to dismiss the employee just for refusal to go to OH (at least assuming this is the first refusal) but you will at least give a warning and set out the route map for a potential dismissal down the line.

Martin can be contacted at: martin.brewer@mills-reeve.com

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Esther Smith, partner, Thomas Eggar
There are two possible options here in terms of a way forward. You could take the refusal to attend an OHU appointment as the failure to carry out a reasonable request made by the employer and progress disciplinary action for this failure. If you have advised the employee of the reasons why you want to get this report and they have refused, without good reason, to comply, then disciplinary action may be the only way to get them to play ball.

The other route is to stick with the absence management process and emphasise to the employee that the purpose of the report is to enable the employer to make a fully informed decision about their future employment and that if they don't agree to the report you may have to make that decision based on the information you have to hand. This has much more impact in a long term absence situation where you are considering termination, rather than progressing disciplinary action on the basis of short term problems.

My view is to probably use both approaches, and continue to monitor and address the attendance through the disciplinary procedure and also build in an allegation regarding the failure to agree to see OHU.

Esther can be contacted at: clairec@midnight.co.uk

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information please visit Thomas Eggar