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Ask the expert: Depression and self-certification of absence


Ask the expertAn employee has been off work due to self-certified stress and depression, but refuses to see a doctor or get a doctor’s note. Esther Smith and Martin Brewer advise on how to handle this situation.

The question:

We have a situation where an employee (X) has taken three days off work. A meeting was arranged during this time as X wanted to advise the company that he was depressed and stressed due to the behaviour of a number of other employees towards him, and therefore could not come to work. He also asked for this not to be made a formal complaint or otherwise, and to see if it could be resolved without doing so. A number of solutions were discussed and agreed and X is now back at work.

X was asked to complete a self-certification form and he has self-certified as ‘severe stress and depression’ for the absence. In line with company policy it has been decided that a doctor’s note is required or that X must take this time as holiday. X refuses to get a doctor’s note or to see a doctor.

Although this is a sensitive issue and the company is keeping an eye on the banter and comments between the involved parties, we cannot just allow time off in this situation because it could happen again when X decides he is too depressed or stressed to work.

I believe that we can ask for X to be seen by a doctor because he has mentioned ‘severe depression’, which is in fact a medical diagnosis.

Are there any suggestions on how to handle this issue to come to an agreement about X’s absence?

Legal advice:

Esther Smith, partner, Thomas Eggar

As this employee has only had three days off work it is not usual to require a medical certificate to authorise this period of absence. Most contracts (due to the link in with SSP arrangements) require a medial certificate only after seven days of absence, with the employee being able to self-certify in the short term.

You have no ability to force the employee to take the time off as holiday, as he was not on holiday but genuinely unfit for work due to ill health. Arguably, if you did record this time off as holiday it would distort the accuracy of your records and should any future absences occur, your records would suggest that he had not previously taken time off for a stress-related reason, which could cause you difficulties.

If your contract requires a medical certificate to be produced to cover any period of absence, irrespective of length, then you could force the issue with the employee. However, if they continue to refuse to visit their GP to get a certificate (either because they do not want to talk to their GP about this absence for whatever reason or they do not want to have to pay for the certificate, as they would have to if the period of absence is less than a week) then technically you could discipline them for breach of contract for failing to comply with your requirements. However, if the employee is already disgruntled and has issues with colleagues, this route is probably not going to help matters.

The issue of authorisation of absence is completely separate from your right as an employer to ask an employee to undergo an independent medical examination (at your cost) should you have cause to believe that they are unfit for work, or that you need information about their health in order to comply with your obligation to them as regards duty of care. However, even though the employee has cited stress / depression as the reason for absence it would seem a little unreasonable to insist on a medical examination given the length of absence in question and the fact that it was the first instance of such absence.

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, Mills & Reeve

It’s a little difficult to answer this as details about the contractual position are somewhat lacking. You say that X did complete a self-certification form as requested. You also say X was asked to get medical evidence. If that’s right, then why ask for the self-certification when you already knew that X was saying he was depressed? It doesn’t really add up.

I would be surprised if your employment contract could force someone who self-certified as sick to take that time off as holiday and I think you are confusing two different things. So let’s see if we can sort this out.

If the employee is required by you, in accordance with his contract, to provide a medical note to verify his illness, in the absence of which he presumably won’t get paid for the time he took off, then so be it. You are contractually entitled to pursue this.

As to requiring X to see a doctor, again that is a matter of contract. However it can’t be just because his self-certificate says ‘severe depression’ and that is, as you suggest, a ‘medical diagnosis’. All diagnoses of illness on self-certification forms are, in that sense, ‘medical’ so even if he said ‘cold’ or ‘flu’ that (spurious) reasoning would apply. Presumably if he doesn’t get the medical note his three days off will be unpaid unless he agrees to convert those days into holiday.

Where I think you may go wrong is in trying to insist on the holiday. Why not leave it as the employee’s choice – sick pay if he provides a medical note, holiday pay if he agrees to take it as holiday, or nil pay if he does neither?

I stress that I cannot advise whether failing to pay him would be a breach of contract or an unlawful deduction without seeing the contract. And you might want to think about actually dealing with the causes of X’s stress as you may well be faced with an argument that your treatment of him over this issue is just adding to it.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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