The question: Depression/stress at work – employer queries ‘fit note’
A friend is into her 5th continuous week of absence, all supported by GP notes every two weeks, stating ‘stress at work/anxiety’ or ‘depression’.
Essentially, what started as a stress at work issue three months ago has caused her lots of stress and she has now developed severe depression as assessed and documented by her GP. She is on anti-depressants and receiving counselling. She has been with the company for over 10 years with a previously good sickness record and no previous history of mental illness.
On informing her employer of this 5th week of absence for depression, the employer has written directly to her GP (cc’ing my friend) asking the GP to reissue the fit notes or provide ‘explanatory notes’ for the above illnesses supported by official DSM-IV/ICD-10 classification codes, plus the GP’s record of what he believes are the causes of the work-related stress.
My questions are:
1) Can the employer write directly to the GP without the employee’s consent? They have not made any attempt to gain her consent. The first she heard was when she received a copy of the letter. Surely the GP will just ask the employer if they have consent? Technically they are not asking for a full report, but still, they are asking for confidential information from her notes beyond that on a sick note, and she has discussed some highly sensitive issues to do with her depression.
2) If they don’t ask her consent, can this potentially be used against the employer at a tribunal, should it come to that?
3) Is it right that an employer is questioning the doctor’s certificates by asking for more information on the genuineness of the illness?
My friend is genuinely ill and in fact the original cause of stress was her employer, so she is now really worked up that they are being so harsh on the sickness, and that they may use the GP’s report to not pay her company sick pay (to which she is entitled four months due to length of service).
Esther Smith, a partner at Thomas Eggar
Generally I would not advise any employer to write to a GP without seeking the employee’s consent, as the GP will not be in a position to provide information about the employee’s condition or state of health without the employee’s consent, so it is a bit pointless. It is also not particularly polite or suggestive of a supportive approach by the employer! If the fit notes were incomplete, illegible or contradictory I can see an argument that says it is ok for the employer to contact the GP directly, as they are simply seeking clarification of the information already provided but it appears from your information that the enquiry has gone slightly further than this.
I think the approach without consent could be seen as heavy handed and if the employee were subsequently pursuing a claim against the employer which involved allegations of a breach of the relationship of trust and confidence, this may be a relevant factor if coupled with other matters. On its own, it is simply bad practice by the employer.
If your friend has a contractual right to sick pay in the event of absence, then the employer should have no grounds to withhold it by challenging the GP. It sounds to me, given that they copied your friend in on their letter, that due to the fact that the certificates refer to stress at work they were conducting a genuine enquiry rather than trying to do anything underhand.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar
Martin Brewer, a partner at Mills & Reeve
Taking each of your questions in turn:
1 The employer can write to the GP if they wish. What the GP cannot do is breach patient confidentiality so would not be able to respond to these questions without your friend’s explicit consent. I should add that I cannot imagine what the employer hopes to gain by these questions. It sounds as though what the employer ought to do is send the employee for an independent medical assessment.
2 I don’t think so. What point would be being made against the employer in a tribunal should the matter arise? The employer will simply say that they were just seeking the assistance of the GP to understand the absence, reasons for it etc.
3 Really this is asking what was in the employer’s mind when writing to the GP and we don’t know the answer to that. The questions that you say were asked of the GP are all about seeking more information about the illness, how it is classified in, for example the ICD (although that’s not conclusive of anything in itself) and the causes. The employer may be testing the veracity of the illness in this way or may genuinely be seeking further information in order to see if they can help get your friend back to work. It does not follow that because an employer asks questions about someone’s illness, they do not think the illness is genuine.
In the end, your friend needs to get well. The employer, possibly recognising the seriousness of the work-related stress issue, may well have thought that they were doing the right thing by not contacting her directly, and potentially increasing her stress, and instead decided to contact her GP. That may not have been the right or best thing to do, but it doesn’t follow that their motive is malign.