Let’s consider what OH actually does.

There are two aspects to the purpose of OH; firstly there’s the clinical assessment (that’s the ‘health’ bit in ‘occupational health’). This means that primarily, these are assessments of employees’ health, including their medical history, medication, symptoms, functional ability, social context and much more. It’s what we, in the industry, call the biopsychosocial approach. Secondly, there’s the consideration of how the individual’s health affects them at work, if at all (that’s the ‘occupational’ bit).

So in other words, occupational health providers are assessing the impact of health on someone’s work.

Why do you need this in HR?

As an employer you have a duty of care to your employees. Legislation such as the Health and Safety at Work Act (1974), and the Equality Act (2010) make it clear that employers have an obligation to ensure that employee health and wellbeing is being protected wherever possible, and if someone has a disability that you’re doing what you reasonably can do to help the employee overcome any disadvantage suffered as a result of their disability. This is called ‘reasonable adjustments’.

Health can impact someone’s ability to work normally. This could be long-term, it could be short-term. It could be through something easily measurable, such as attendance rates or target-related performance, or something less measurable, like behaviour at work or attitude.

Whatever the case may be, you as an employer need the output from your employees to be of a certain standard. Regular absences, poor performance or unpredictable behaviour can be problematic for an employer, and in these sorts of cases they are typically managed via your internal procedures, such as absence management policies, performance improvement plans and even disciplinary procedures for instance.

However if health conditions, and perhaps even disabilities are part of the cause for this, then you need to consider these before doing any sort of ‘management’ action – the case law on this is very clear. And because you’re (presumably) not a medical professional, this isn’t really something you can do. And you certainly aren’t independent either unfortunately.

So seeking advice from a specialist independent clinician like an occupational health nurse will provide you an independent view on what impact (if any) their health condition is having on their work, and anything you can do to support the employee. It will give a view on what the employee needs (rather than what the employee wants), and help you to ensure you are providing the employee every opportunity to be successful within your organisation.

So in summary, occupational health is providing you independent, clinical advice, that helps to ensure the employee is being treated fairly in relation to their health conditions, whilst ensuring an employer isn’t inadvertently discriminating against an employee or making adjustments that may not even be required.  

This is an important read for the HR department, and data protection officer of any organisation in the UK, as it helps to provide clear guidance and structure.

The guidance recognises that in some instances, collecting health information is required as part of someone’s employment. However it also recognises that this is intrusive, so should be limited only to the minimum information required, and only when it is required, and that an employer should respect an employee’s privacy when handling their health information.

Here are some of the key features of the ICO guidance in relation to handling employee health information:

• You should consider how you will use the information, and why you need the information
• You should be clear and transparent about why you are handling the health information
• You must record your purposes for handling this information as part of your documentation
• You should not handle more information than is required, and should not request information just in case it could be useful in the future
• There should be a lawful basis for handling this information
• The information must be kept confidentially and securely
• The information must be accurate wherever possible
• It should not be kept for longer than you need it, and you should have a retention policy
• You should leave it to medical professionals to access and interpret detailed medical information, for example when making decisions about fitness for work

It is this final point that is commonly ignored, and subsequently dealt with ineffectively by employers.

The ICO guidance attempts to capture the essence of the relevant data protection law, by ensuring that employers are acting reasonably and responsibly when it comes to health information. Part of this involves ensuring that you aren’t collecting intrusive medical information with a view to making clinical judgements yourself, as this falls within the remit of your occupational health service.

An example that the ICO provide is about health questionnaires for workers to ensure they are medically fit to work in their job role, and states the following: “It is good practice for health professionals to design health questionnaires. This also means the questionnaires should be interpreted by those who are qualified to draw meaningful conclusions from the information supplied by the worker.”

So if part of your recruitment process involves fitness for work checks, do not use your own health questionnaires to make these decisions. You must use an occupational health provider such as Smart Clinic, who operates a service called a pre-placement screening, where an employee completes an assessment directly with the occupational health provider, so as not to reveal confidential medical information to their new employer, and so that any clinical decisions and advice can be made by a suitable qualified professional.

Similarly if you have a situation with an employee where their work is potentially impacting upon their health, or their health is potentially impacting upon their work, be careful not to explore this too deeply yourself, as you’re in danger of collecting unnecessary medical information, and then inadvertently making decisions on an employee’s ability as a result.

If you would like more advice or would like to begin using Smart Clinic for your occupational health service, please contact us today and our client team will be delighted to get you set up.

There are generally no upsides to staff absences.

So managing them effectively, and helping to reduce the volume and length of absences is vitally important to any organisation. But how do you go about that?

Here are a few tips…

Have an absence management policy

As part of your standard operating procedures, you must have an absence management policy. This should be available to all staff, to make it clear what your expectations are as an organisation, and what they can expect in the event of them being unable to work during their contracted working hours.

Some of the points this policy should cover includes:

• Your policy on sick pay and statutory sick pay
• The procedure for providing self-certifications and ‘fit notes’
• The procedure for informing the employer or their absence and ‘calling in sick’
• Levels of absence, trigger points and absence management stages
• Referral to occupational health
• Availability of any wellbeing support or company benefits

This absence management policy should become your ‘how to’ guide for managing staff absences, so ensure yours is robust and fit for purpose.

We have a free absence management policy written by our employment law partners at ‘Primed’, which you can use as a template to ensure you have all bases covered. Feel free to access it here.

Refer to occupational health

Probably the single most effective way of managing your staff absences is by proactively using occupational health. Hopefully this will already form part of your absence management policy, but even if not, engaging occupational health to support you with employee health issues is important.

Remember, in your role as a line manager or HR professional, you aren’t medically trained. So taking detailed information about someone’s health history, and trying to make a decision on someone’s working capacity based on medical factors probably isn’t appropriate.

So if you use occupational health proactively, this will help employees to remain supported in the workplace as much as possible, thereby reducing their need to be absent. It will also discourage any future absences because health concerns can be better managed.

You may wish to consider including referrals to occupational health within your absence management policy as part of your standard procedure. This could include for employees who have disclosed health concerns, employees who are evidently struggling whilst at work, employees with regular absences, employees with long-term absences, or employees who may have a disability.

To get setup with an occupational health service, get in touch with us today, and we’ll match you to the best and most cost-effective option for your organisation.

Conduct return-to-work interviews

There are loads of tutorials and templates available for conducting effective return to work interviews because they are such an effective tool.

Yet they are surprisingly infrequent amongst employers.

If an employee has been absent from work due to ill-health, then returning to the workplace can feel quite overwhelming, especially if they’ve fallen behind with work or there is uncertainty around anything.

However conducting an effective return to work interview will help you to alleviate any of the employee’s anxieties. You can also use it as an opportunity to set any expectations around absence levels, trigger points and support available. Additionally you can check-in with them from a wellbeing perspective, discussing any occupational health advice that has been received, and any short-term support measures you may be putting in place.

Not only will this improve the employee’s rehabilitation back into the workplace, it will have a positive effect on reducing any avoidable absences in the future too.

Provide access to wellbeing support

A small spend on corporate wellbeing can have a massive impact in your organisation.

All too often organisations will take an employee assistance programme as little more than a ‘tick-box exercise. Whilst this may be inexpensive, it may also be ineffective, making it a poor value option. Giving staff access to wellbeing support that actually works for them will make all the difference, because you can ensure they have the health support that will benefit them when they need it most.

This will help employees to feel supported in the workplace, mitigates the risk of absences and helps to keep staff in work wherever possible…not to mention fulfilling your duty of care as an employer.

Usually this is because your employer would like some medical advice from a specialist in their field about the best way to manage you whilst you’re experiencing a health concern.

This health concern could be something that you have raised with them directly, or it could be because you are absent from work. It could also be a mental health concern, a physical health concern, or a combination of both.

Your employer will not be a medical specialist, or an occupational health specialist. Therefore, they will not be trained in assessing and managing any occupational health related matters. Nor do they have the expertise to make decisions based on medical factors without the input of a relevant specialist.

That’s where occupational health assessments are used. They give your employer advice on medical issues to enable them to make informed decisions, such as managing and supporting you in the most appropriate way. For example, you may be suffering from a health condition that prevents you being able to complete some tasks at work, but you are still perfectly capable of completing other tasks.

Occupational health reports will advise your employer which tasks you can continue to complete, and which you should refrain from temporarily. They will also advise on whether you need any help in order to complete these tasks.  

Therefore, you don’t need to be absent from work to be referred to occupational health. If you are absent, this may be your first absence at the company, or you may have had multiple absences in the past. Either is perfectly normal.

If you are unsure as to why your employer has referred you to occupational health and what the next steps are, you should always ask them the question and have this conversation with them first. They may be happy to share the referral with you so that you can have sight of this, and gain a better understanding as to what questions they would like asking as part of the process.

You may also have questions about what the process of being referred for an occupational health assessment involves, or how this differs from the need to self-certify or issue a fit note from your GP.

If you would like more information about the process, or would prefer your employer uses Smart Clinic for your occupational health support, please get in touch with us today.

For more information or a quote, please complete the following request, and Vita Safety will get in touch with you shortly.

Whether you’re a single school or a multi-academy trust it’s difficult to manage risk effectively. You need to consider key questions like:

• Are we keeping our students, colleagues and visitors safe?
• Do we need to update our policies and procedures?
• What is the status of our health and safety culture?
• How much are we spending on risk management?

Vita Safety will help you deliver school-specific, streamlined risk management. They have a range of tailored SLAs including:

Annual audits

Vita Safety will tailor audits to your school(s) so that every unique threat is assessed and analysed on a continual basis. Web-based audits and action tracking systems make processing data seamless.

Fire risk assessments

They will identify fire risks and assess your current safety measures, such as servicing equipment and creating fire evacuation plans, enabling you to achieve consistent fire safety compliance.

On-demand advice

No more hours wasted scouring the internet for specialist health and safety advice. On-demand phone and email support will ensure you get answers to your questions exactly when you need them.

On-site and remote training

School-specific health and safety training for trustees, chief executives, senior leadership teams, staff and school business managers equips your people with the necessary skills to manage risk effectively.

Trust board briefings

Vita prepare you for health and safety board briefings, helping to assure the board that health and safety requirements are being met.

Risk profile assistance

Vita review the risk profile for every school in the trust, ensuring its up-to-date and that the health, safety, fire and property risks are being led and managed properly.

Policy and procedure drafting

Simplify policy and procedure creation with drafting support. Vita take into account unique health and safety hazards while offering a unified approach for each of use.

Cloud-based document storage and sharing

With all your documentation saved securely in one place, sharing reports with the trust board and storing evidence for compliance is easy.

For more information or a quote, please complete the following request, and Vita Safety will get in touch with you shortly.

Remember, for many employees being referred to occupational health can be an intimidating experience. So it’s important to reassure employees that occupational health is a supportive measure, not a punitive one.

One of the primary intentions of occupational health is to provide advice to management, enabling them to manage an employee (and their health situation) effectively and appropriately. This could mean understanding what an employee can and can’t do and putting in the necessary support to help them at work.  

On the whole, work is good for us. Wherever possible it’s generally better for us to be at work than not, and you don’t need to be 100% fit in order to be at work. A referral to occupational health can help an organisation to ensure staff are working as much as possible, and that an employee is getting the support they need without being asked to do work that they’re unable to do for health reasons.

Below are five instances in which you may consider a referral to occupational health.

1. In the early stages of an absence

When an employee is absent, involving occupational health as early as possible is helpful. There are a few reasons for this, but primarily whatever you are going to do to support the employee is best done as soon as possible.

An early intervention from occupational health means that both the employee and the employer receive clinical advice early on. The employee has information on how to manage their own condition and can seek the appropriate medical care as required. This early intervention helps to prevent the condition deteriorating and speeds up the recovery process.

At the same time a manager can understand and support with a health condition immediately, making the support considerably more effective. This could be as simple as making the employee feel valued and cared for, or could help the employee to continue working with amended duties instead of being off work.

2. When an employee is considering a return to work

A common use for occupational health is for advice on when an employee is returning to the workplace following an absence.

Ideally you will have already had an occupational health assessment with the employee, but no drama if not. At this stage occupational health can confirm that an employee is ready to return to work in some capacity, and provide advice on what this return to work plan may look like. Does the employee require any temporary adjustments? Are they fit to do some or all of their role? Will they need a gradual build up of duties at all?

This use of occupational health covers you as an employer, because it demonstrates that you’ve taken the appropriate advice to ensure an employee is safe and healthy enough to do their job. It also promotes a more sustainable return to work by ensuring they aren’t taking on more than they can manage and subsequently going off sick again.

3. When an employee discloses a health condition and may need support

An employee has bravely confided in you about their health condition, and you aren’t sure what needs to be done to support them or whether they need any adjustments in the workplace. This could be a physical health concern such as asthma or back ache. It could also be a mental health concern; perhaps your employee struggles to manage their anxiety.

As a line manager it is highly unlikely that you will be qualified as a medical professional, which means you probably aren’t going to be best place to make decisions on what treatment or support would best help the employee to manage their condition.

This is where an occupational health referral can help. You will receive the advice and information you need to support the employee with managing their condition, ultimately helping them to continue successfully completing their job and preventing any future absences.

4. When an employee may not be able to do their job

In some unfortunate circumstances it can be possible that an employee can no longer do their job due to their health.

In such an instance there are any number of possibilities you could consider as a manager, such as dismissal, redeployment or retirement (see point 5). However you are unlikely to be able to make a judgement on an employee’s future ability to perform their job, so it’s important to ask for occupational health advice.

Case law has been very clear on this in the past. Employment tribunals and court cases will never side with an organisation who has made such a decision without obtaining the necessary medical input first – so use your occupational health provider!

5. When an employee is considering retirement due to their health

If an employee is unable to perform their role due to ill-health, and it seems likely that this will extend to their normal retirement age, then ill-health retirement can be an option.

The law surrounding ill-health retirement is complicated and not a decision that can be made by the employer alone. Most pension providers including local government pension schemes will insist on a decision from occupational health. So contact your occupational health service to help you through this difficult time!

This guide describes the rules surrounding ill health pensions and the procedure involved if you think you may meet the conditions for retiring early on the grounds of ill health. This information is only relevant if you are an employee currently paying into the local government pension scheme.

We’ve kept jargon to a minimum, but there are certain terms you’ll need to be familiar with, so we have explained these in a glossary.

The law

This guide is based on the Local Government Pension Scheme Regulations (2013), and is correct at the time of publishing (June 2022). The sections specific to ill-health retirements are regulations 35, 36 and 39, as well as regulation 12 of the Local Government Penson Scheme (Transitional Provisions, Savings and Amendment) (2014).

The law is complicated, and this guide will only provide an overview of what you need to know, not a comprehensive explanation. If you dispute any decisions, you may wish to seek legal advice as it is the appropriate legislation that will be used to reach a decision.

Eligibility for ill health retirement

In the Local Government Pension Scheme (LGPS) you can apply to your employer by asking them to pay your pension benefits early on health grounds. This can be requested at any age, but to be considered you must be eligible for an ill health pension and meet certain criteria. It is important to understand these criteria before making your application.

To be eligible for an ill health pension under the LGPS you must:

• Be under normal pension age. For current scheme benefits this is 65 years or your State pension age if later. You can find your state pension age at: https://www.gov.uk/state-pension-age
• Be dismissed from employment by your employer due to your ill health
• Fulfil the ‘two-year requirement’. This means at the date you leave employment you must have paid in for two years or more. There may be exceptions if you have brought in a transfer of any type.
• Meet the LGPS criteria for retiring on ill health as set out below.

Criteria and consultation

Your employer will need to refer you to Smart Clinic to consult with a specially qualified doctor. Our doctor will be independent with no prior involvement in your case, and will assess you against two main conditions. Both must be satisfied for you to be eligible.

1. You are permanently incapable of doing your current job. This means you have a medical condition which will, on balance of probabilities, prevent you from carrying out your job until normal pension age. 
2. You are not immediately capable of carrying out any type of gainful employment. Gainful employment is defined as paid employment with any organisation, of at least 30 hours a week for a period of at least 12 months.

The ‘balance of probabilities’ is a key term used to define the likelihood of recovery before your normal pension age. It means that it would need to be more likely than not (in other words greater than 50% probability) that you would not recover sufficiently before your retirement age to a point where you can complete your job role.

If you are assessed as fulfilling these criteria, the doctor will then give an opinion on if and when you are likely to be capably of returning to any gainful employment in the future. You will then be classed as a tier 1, 2 or 3 ill-health case.

If you are assessed as not fulfilling the criteria this means that you cannot retire on ill-health grounds. An example of this would be if you have a physically demanding job that you are permanently unable to do, but you would be fit enough to carry out a less demanding job that would prevent you retiring on ill-health grounds.

Awaiting or undergoing treatment

If you are waiting for treatment, or are currently undergoing treatment for a health condition, this could mean that you would be capable of employment in the future if the treatment is successful or effective. This is particularly relevant for health conditions that can commonly be treated, or the effects can be managed with treatment.

In such instances the doctor will assess what the likelihood of you being able to work will be once the treatment has been concluded, irrespective of whether you choose to accept this treatment or not.

There can be uncertainty around this, so it is recommended that your employer waits until you have completed and recovered from the treatment before considering you for ill-health retirement.

Dismissal vs ill-health retirement

The criteria used in the LGPS to consider ill-health retirement is not the same criteria that your employer will use to determine whether they should dismiss you based on medical grounds.

You may be dismissed from employment, but not be eligible for ill-health retirement. For example if your health condition has caused an unacceptable level of sickness absence, but there is a likelihood that you would be able to work again in such a role in the future, you would not meet the criteria for ill-health retirement.

Considerations such as length of service or your financial position have no effect on deciding whether you are eligible to retire on ill-health grounds.

Being referred to an approved doctor

You will be referred to an approved doctor at the Smart Clinic, sometimes called an independent registered medical practitioner. This is necessary because your employer is not a medical expert, and the LGPS rules dictate that the opinion of an approved doctor should be sought. The approved doctor would typically be registered with the General Medical Council, and also have a further qualification in occupational health.

Your employer will need to submit a partially completed ill-health medical certificate to the doctor, who will complete this with further information on whether you meet the ill-health retirement criteria. The doctor may need access to further medical reports as part of the assessment. The referral from your employer will also need to include details about you and your job role, along with any previous copies of medical reports that they have obtained about you.

The referral may also include any changes to your job role that have been made as a result of ill-health, such as reduced hours, receiving less pay or any workplace adjustments.

The doctor’s assessment

The doctor will use all the information submitted as part of the referral, including previous medical reports and job descriptions as part of their assessment. Using their medical expertise and knowledge around the LGPS ill-health retirement criteria they will form an opinion on whether you are eligible.

This assessment can take many forms, it may be a face-to-face appointment, video appointment, telephone appointment or paper case review depending on your circumstances. This will be communicated with you by the medical team.

How you can help

It is in your interest to help the doctor fully understand your medical condition and the impact it may have, so you should be as involved and cooperative as possible with gathering the information relevant to your case. There are things that you can do to help and speed up the process. These include:

• Providing your consent for the doctor to write to your general practitioner or any other medical professionals involved in your care. You do not have to provide your consent for this, but by doing so promptly it allows the doctor to obtain more medical evidence about your condition.
• Providing access to any medical letters or reports that you have. In some instances you will already have copies of the necessary information. If you produce these early on, this may mean that the doctor doesn’t need to obtain any further evidence, saving the cost and significant delay involved in gathering a response from your medical care team.
• Making yourself available for an appointment as required. If the doctor needs an appointment with you, you will need to attend this. Often this can be done remotely, but may need to be by video. You should be proactive about accommodating this, ensuring that you can be available for the appointment in plenty of time.
• When describing your case to the doctor and your employer, try to think about how you expect your medical condition to affect you until your normal pension age, and how it may affect your ability to work in the future (not just your current job role). Requesting information about this from your medical care team and referencing this will help.

After the assessment

The doctor will form an opinion and will complete a medical certificate, which may also have an accompanying report. With your permission this will be returned to your employer, who will then use this to decide whether or not to release your pension benefits early, typically following the doctor’s recommendation.

On occasion there may be conflicting opinions from the medical professionals, and your employer will need to decide which advice to follow. Typically they should follow the advice of the doctor who has completed the ill-health retirement assessment.

Your employer will need to take note of the Statutory Guidance issued by the Department for Communities and Local Government and any non-medical factors that will affect your ability to carry out employment.

Your employer will write to you with a decision and will notify your pension fund. If your application has been approved they will also confirm whether you are classed as tier 1, 2 or 3.

If you do not agree with the outcome you can appeal the decision, and the letter from your employer will detail how to do this.

Appealing the decision

You have a right to challenge your employer’s decision if you disagree with it.

If the decision is that you do not qualify for an ill-health pension, your appeal against the decision would need to demonstrate that a suitable and correct process has not been followed, or that there is new medical evidence to consider which has not previously been looked at by the doctor. You would also need to have been dismissed on ill health grounds.

If you have been approved for ill-health retirement but disagree with the tier, you would need to demonstrate that there is new medical evidence to consider which has not previously been looked at by the doctor.

To appeal the decision there are two stages:

• Stage 1 – refer the matter to the specified person at your employer. This should be done in writing and within six months of the date of the decision letter. Your employer should respond within two months of your appeal letter.
• Stage 2 – refer the matter to your pension fund. This should be once you have attempted stage 1, and had an unsatisfactory decision, no decision, or a failure to respond within the specified timeframes. This should be done within six months of the Stage 1 decision (if applicable) and you should supply as much information to your pension fund in writing as possible.

The 3 ill-health tiers

Tier 1: You are unlikely to be capable of carrying out gainful employment before your normal pension age.

Tier 2: You’re unlikely to be capable of carrying out any gainful employment within three years of leaving, but it is likely you will be capable of doing so before your normal pension age.

Tier 3: You’re likely to be capable of carrying out gainful employment within three years of leaving, or before your normal pension age if sooner.

How long does it take?

This is difficult to answer because each case is different, and reliant on external factors. Typically the Smart Clinic will complete their actions within two weeks. However it may be necessary to write to your general practitioner or other medical specialist, and in such instances it will depend on your response time. On average this is around 6 weeks but can be dramatically longer or shorter on occasion. For this reason if you have medical reports already please submit them, as this could speed up the process significantly.

Smart Clinic

We are a specialist occupational health provider and experts in handling the medical aspects of an ill-health retirement. For more information, or to refer an ill health retirement case to us, please get in touch.

Here’s the answer to a few common questions you may have.

Is it bad to be referred to occupational health?

No. It’s important to debunk the myth that people get referred to occupational health because they’re in trouble at work. That is not the purpose of occupational health, disciplinary proceedings will typically be via your human resources department who will have a set procedure that involves investigating issues at work. This is entirely separate to occupational health.

You will have been referred to occupational health due to an absence from work or health condition, and your management team would like further advice and information from clinical specialists on how best to support you and the business. They may have specific questions that they want to ask a medical professional to ensure that they are acting appropriately.

Please visit this article for more information on the purpose of an occupational health assessment.

Would you like to be referred to Smart Clinic instead?

If you’ve been referred to occupational health, but you would prefer to be seen by Smart Clinic instead, why don’t you ask your employer to get in touch with us. Alternatively, use the below button and we will get in touch with them for you.

Ask my employer to use Smart Clinic

Will an occupational health report go against me in the future?

Your occupational health report will be saved as part of your HR records so that an employer can ensure that they are acting appropriately and following any advice relating to your health in the future. This should not ‘go against’ you, but may be used to make informed decisions.

What can I expect from an occupational health appointment?

An occupational health appointment will be a discussion, either remotely or in person, with a clinician trained to assess fitness for work. They will discuss why your employer has made the referral and what will happen next. During the appointment they will ask you questions about your current medical situation and your past medical history. Depending on the circumstances they may ask you some social questions such as any workplace or home related issues you may have.

After this they will produce an occupational health report for your employer. With your consent, this will be sent to your employer when it’s ready.

Please visit this article for more information on the purpose of an occupational health assessment.

Do I have to attend an occupational health assessment?

You should consult your employment contract to ascertain whether there is a clause in there that mandates you to attend an occupational health assessment when requested. If no such clause is present then you are not obliged to, however it will usually be in your interest to do so.

If you refuse to attend an occupational health assessment then your employer will manage the situation without any medical input or advice from occupational health. This means they may not have received any advice about your current ability (or inability) to work, any adjustments you require or any considerations

What power does occupational health have?

Occupational health is an advisory service. Typically it will provide advice to your employer or yourself. It will be your employer’s decision what action they choose to take, not occupational health.

In the case of an ill-health retirement application, the decision on whether an individual is likely to be eligible is often made by an occupational health doctor.

What will the occupational health report say?

An occupational health report is not a transcript of the entire conversation you have with the clinician. It will be a shortened summary, detailing any relevant clinical advice that can be offered following on from the conversation. The advice will likely include the medical practitioners opinion on a number of factors such as your current fitness for work, your future ability to work, any impact a health condition may have on your work, whether you are covered by any relevant disability legislation, whether you are able to attend meetings with management whilst absent, how long you are likely to be absent for, and other similar subjects.

I have a fit note (sick note) from my GP, so why have I been referred to occupational health?

Having a fit note doesn’t negate the need for an occupational health assessment. Nor does it overrule any occupational health advice.

A fit note (previously referred to as a sick note) is issued by a general practitioner after a short (typically 8-10 minute) appointment, and will have very little information on. If your employer requires more information or advice, they will seek the advice of a specialist practitioner from occupational health. This will involve a more detailed assessment and includes a more detailed report.

Please see more information about the difference here.

Overview:

An employment tribunal has determined that Ms Allette was dismissed fairly from her role as a Care Assistant from a nursing home, after she refused to be vaccinated against COVID-19.

Summary:

Ms Allette had been employed as a care assistant at Scarsdale Grange Nursing Home for 14 years.

The management team from Scarsdale Grange imposed an instruction that all staff should be vaccinated against COVID-19 as part of their employment. Ms Allette refused to comply with this instruction, and was subsequently dismissed from her employment in January 2021.

Ms Allette made a claim for unfair and wrongful dismissal on the basis that they were “not well-founded.”

The tribunal considered whether the reason for dismissal was fair, whether the request unreasonably interfered with Ms Allette’s human rights, and whether Scarsdale Grange acted reasonably.

Tribunal conclusion: reason for dismissal

The judgement said “There is an implied term in every contract of employment requiring an employee to comply with reasonable management instructions.”

Therefore the tribunal accepted that Ms Allette’s actions constituted gross misconduct, saying “her refusal to be vaccinated was therefore an action which in the circumstances of this case, amounted to a repudiatory breach of her contract of employment with the respondent. The respondent was therefore entitled to summarily dismiss her.”

Tribunal conclusion: interference with human rights

The tribunal agreed that mandating the vaccine interferes with an employee’s physical integrity in a manner capable of engaging the rights under Article 8(1) of the European Convention on Human Rights (right to respect of private and family life). However in balancing Ms Allette’s rights against the rights of the residents, other staff and visitors, Ms Allette’s stance was deemed unjustified and therefore dismissal was fair.

Tribunal conclusion: the employer acting reasonably

The dismissal was considered to be proportionate in the circumstances, and Scarsdale Grange “acted within the range of reasonable responses of a reasonable employer”. However the tribunal did note that the employer could have given Ms Allette more opportunities to change her mind, spent more effort persuading her to get vaccinated, or placed her on paid/unpaid leave.

Scarsdale Grange were found to have acted upon the medical evidence that was available at the time. They were unaware that Ms Allette had already contracted COVID-19 so could not take that into account, as she had not revealed this at her disciplinary hearing. They were also unaware that Ms Allette cited religious reasons for refusing the vaccination, claiming that she was a practicing Rastafarian, as she failed to mention this during her disciplinary hearing too.

Overview:

Asda were found to have constructively dismissed Mrs Hutchinson, a dementia sufferer, after she was repeatedly asked if she wanted to retire but was not referred to occupational health. Although done with the best of intentions, this amounted to disability and age-related harassment.

Summary:

Mrs Hutchinson, a 75-year old shop worker from North Wales had been suffering from symptoms of dementia since 2017, initially noticed by her son.

In November 2019 she had been admitted to hospital for an unrelated consition, and on her return to work colleagues noticed a deterioration in her cognitive functioning, with Mrs Hutchinson forgetting things and losing items regularly.

In February 2020, Mrs Hutchinson began travelling to work by bus as she was experiencing difficulties driving. At this time she also told the Ms Green, People Trading Manager, that she was undergoing memory tests organised by her GP.

Ms Green also observed that Mrs Hutchinson had walked to work after being unable to find the bus stop, and when Mrs Hutchinson accepted that her symptoms we worsening Ms Green suggested arranging an occupational health appointment, which Mrs Hutchinson refused.

When Mrs Hutchinson asked Ms Green what she should do, Ms Green discussed how retirement could be an option. Mindful of her wellbeing, she also adjusted Mrs Hutchinson’s hours to avoid the need to travel to work in the dark.

Although in March 2020 Mrs Hutchinson was required to shield due to the Covid-19 pandemic, her line manager, Ms Weston-Laing, supported the claimant by reminding her about things, taking extra time to explain things to Mrs Hutchinson, and assigning colleagues to assist her where possible. She also brought Mrs Hutchinson shopping during her period of shielding.

Ms Weston-Laing kept in touch regularly with Mrs Hutchinson, and during one of the phonecalls asked Mrs Hutchinson whether she would like to retire. Mrs Hutchinson responded “no” and reportedly felt upset and unwanted. Reportedly a similar conversation also took place some weeks later.

Ms Weston-Laing denies this, stating that Mrs Hutchinson actually raised the topic by asking “What would happen if I retire?” however the tribunal found that despite Ms Weston-Laing’s “caring and supportive” approach, that on the balance of probabilities she did suggest retirement on more than one occasion.

On returning to work in July 2020, Mrs Hutchinson’s work performance suffered, as she appeared confused and forgetful. Although colleagues tried to help her (for example “rummaging” in her bag for her when she couldn’t find her bus pass), this left Mrs Hutchinson feeling upset and constituted disability-related harassment.

The judgement said of this “There may have been a way of assisting the claimant which preserved her dignity, asking her what she wanted them to do. The conduct was unwanted by the claimant and it related to her condition as it was brought about by her memory impairment. It had the effect of violating her dignity.”

A meeting was held between Mrs Hutchinson, Ms Weston-Laing and another colleague to discuss anything that the store could do to support her. However Mrs Hutchinson became upset and aggressive, saying that she didn’t need any help and if she did she would ask for it. Ms Weston-Laing again suggested she speak to occupational health, but Mrs Hutchinson asserted “I Can’t do my job, I will leave.” At this point she left the meeting, was signed off sick by her GP, and did not return to work.

The judgement wrote the following about the situation: We have some sympathy for the position that the respondent found itself in as the claimant did not want any fuss or a referral to occupational health. She was reluctant to accept assistance. However we find that the respondent ought reasonably to have known that the claimant was disabled.

“Given the background of the claimant having been asked to retire, we find that when the respondent raised concerns with her this was unwanted and created a humiliating environment for her. It was related to her disability as it was about the symptoms she exhibited as a result of her mental impairment.

“Had the respondent referred the claimant to occupational health prior to her return to work there would not have been a need for her line managers to talk to her directly about her symptoms, even though this was out of genuine concern.

“[The respondent] ought to have referred the claimant to occupational health prior to her return.

“The claimant was, we find, constructively dismissed on the basis that the conduct (which we found amounted to age and disability-related harassment, direct age discrimination and discrimination arising from disability) breached the implied term of trust and confidence.

“It is clear that these situations are very delicate. Nonetheless, employers and managers need to be aware that even seemingly well-meaning comments and actions can be held to amount to discrimination (including harassment) on the grounds of disability and/or age. Asking an older employee if they would like to retire is inevitably risky, as it can make them feel unwanted and upset, and is unlikely to be a question asked of younger employees. It is therefore quite likely that this will amount to age-related harassment.

“A better way is to ask all employees (perhaps as part of the appraisal process) what their future work plans and aspirations are. Furthermore, a retirement policy can be very helpful as it can set out a framework for employees to feel comfortable in raising and discussing their retirement plans.”

Read the full decision here.