Can an organisation force an employee to take a blood test to prove his illness is genuine? Martin Brewer, partner and employment law specialist at Mills & Reeve, and Esther Smith, partner at law firm Thomas Eggar, explain.

The question:
"We have an employee who went on extended annual leave (three weeks, two days) for a family wedding. He originally requested five weeks but this was declined for genuine business reasons and the fact he had taken six weeks the previous year for his own wedding.

"Two days before he was due to return to work he sent an e-mail and a scanned medical note to say that he had contracted a viral infection and needed complete rest for nine days.

"This scenario was not unexpected as he had said to other colleagues he was going to take the full five weeks leave irrespective of whether it was approved.

"His line manager suspects that the medical certificate is not genuine and wants to know if it is possible to have the employee take a blood test to confirm whether he has contracted a viral infection or whether he has been taking antibiotics to alleviate the effects.

"If this is permissible is there a certain length of time before the detecting of the virus or antibiotics in the blood becomes invalid?"

Lawrence Donaghy

The answers:
Esther Smith, partner, Thomas Eggar
Thank you for your enquiry Lawrence, as you say this is quite a peculiar situation. The first thing to say is that it is actually very difficult for an employer to dispute a medical certificate if it has been provided by a doctor. Whilst you may have very good reason for suspecting that the employee in question is simply extending his annual leave, you would need some evidence to support this if you wanted to discipline him or take some other action.

You could of course ask the employee to submit to investigation by the company doctor, or an independent practitioner, if you felt that the situation was not genuine. You could expressly request that this doctor seek to verify the nature of any viral infection, which they would probably do by way of blood test. However, it is possible that the employee would refuse this and it is doubtful that this refusal in itself would give you grounds to place a reasonable belief of his misconduct.

Even if the employee did agree, it is likely that the process would not be conducted swiftly, and by the time an appointment with the doctor could be arranged the employee may have "recovered" from their condition and be fit to return to work (at the end of the five week period they had originally requested as leave!). I have no idea how long a viral infection remains traceable in the blood and if you do have a company doctor it is probably worth seeking their advice on this point.

If you are able to obtain any other information to support your suspicions in this situation this would help. I am thinking along the lines of any communications with colleagues referring to this employee's intentions regarding his holiday etc. or even communications with clients and customers indicating when he will be back at work. You may want to investigate by speaking with his colleagues to see if this gives rise to anything, but you do need to be slightly careful here in case it does produce any information as he may question why you have investigated.

I am afraid it is one without any simple answers, and at the end of the day the employer will simply have to put up with it! If your sick pay is discretionary I would be comfortable withholding discretion for payment for this period, on the basis of the proximity with his holiday and the employer's concern that the absence may not have been genuine.

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

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Martin Brewer, partner and employment law specialist, Mills and Reeve

Lawrence, a blood test is probably not the correct way to go about this. You can ask an employee to undergo a medical but you cannot force him to as that would amount to an assault.

If you have genuine concerns that the medical note is false then this is a conduct issue and you should investigate it in the normal way. You have a number of avenues to pursue.
First get in touch with the doctor who issued the note and check whether it is genuine. You are not seeking medial evidence at this stage so no Data Protection issue arises.

You are simply going to ask whether the medical note was in fact issued by the named doctor. If it is genuine then I doubt you can take the matter further. If it is not then you have a case. That coupled with evidence form staff that the employee always intended to take the five weeks would give you a very strong misconduct (and arguably gross misconduct) case against the individual.

If for some reason you cannot verify the medical note or prove that it is false you may still have a case. Ask the employee to produce the original, get evidence from colleagues about his intention to take the time off anyway and see where that leaves you. If he does produce the original then you may be able to see whether it is genuine. If you cannot, or more likely if he doesn't produce it, you are left with a circumstantial case. However, to discipline, and of course to justify dismissal, all you need as an employer is a genuine and reasonable belief in the employees guilt having undertaken a reasonable investigation.

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

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