An employee, who has many health problems that could be affecting his performance, has refused any medical investigations, and his employer is concerned about his fitness to work. Esther Smith and Martin Brewer advise on the next course of action.

The question:

I have a member of staff who, in the past 24 months, has had a heart operation, hip and knee operation, infection in his lungs, and possible DVT in his lungs. His role is of a cleaner, so can be particularly physical.

I have had to insist on return-to-work notes from his doctor as he doesn’t like not working. When he is at work he is not particularly effective, and whilst I am not a medical expert, I would suspect that this is because of his health (he has trouble walking and bending over). He likes work, as he spends most of the day chatting to people around here – it’s very much part of his social life; which in itself is a performance problem that I’m trying to get his manager to tackle.

I have offered OHP support as I feel that we must make some adjustments to his role, and also consider whether he is fit enough to do it, and any suitable alternatives. However he has refused, saying that it is a way to ‘get rid of him’ and alleging age discrimination (though not in writing at this stage).

What can I do without medical support? I am nervous that I have someone on site, who may be pressing his doctor to sign him fit to work, who I believe may not be fit enough to work.

Legal advice:

Martin Brewer, partner, Mills & Reeve

The first thing you have to do is ask yourself why you are pursuing this. Your question does not say that this employee isn’t performing well when he is at work, it says he has had a lot of time off sick but has always returned fit to work. So what is your concern? You say that you believe he may not be fit enough for work. But what is your evidence for that? You can see why this employee might feel that you are looking for a reason to dismiss. That’s not to say you can’t do anything, I just suggest that you ask what it is you are trying to achieve first.

If you have genuine reasons for questioning this employee’s ability to do the work because of an ill-health problem then it’s right that before taking any decisions about his future you should seek the best medical advice you can. But you cannot force an employee to undergo a medical so, in short, if he refuses then you will have to make a judgement based on the next best available evidence you have – what he says about himself. Part of the evidence for that judgement of course is the employee’s motive for refusing to co-operate with you.

Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

If you have genuine grounds to believe that this employee is not fit to work, and is potentially risking their own health and possibly the health and safety of others by being on site, then you could suspend them on full pay pending confirmation of their fitness to work.

However you would need good evidence, rather than your own assumptions or subjective assessments. Even if you had this evidence, the downside of this approach is that you have to pay them to do no work, whilst you get medical information, which even if the employee consents will not be that speedy.

If the employee refuses to consent to the report in these circumstances you may be in a position to progress a dismissal on the basis of ‘some other substantial reason’. However this is a risky route and specific advice should be taken about the case you are dealing with.

If, as appears to be the case from what you say, the real issue here is the employee’s performance (whether or not this is exacerbated by his health) you should be dealing with this as a performance management issue in the normal way. If he asserts that his performance has been affected by his health then you can ask him to substantiate that by adducing medical evidence, so that may be one way of getting the medical information.

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

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