To what extent can an employer rely on the advice of Occupational Health advisers? - Expert Comments

Stuart Swan
7th Mar 2014

In a recent Court of Appeal case an employee who was suspended and dismissed brought tribunal proceedings for unfair dismissal, direct disability discrimination and a failure to make reasonable adjustments.

General employment law changes


The dismissal occurred after the employer had been made aware the employee was suffering from a number of symptoms such as lack of sleep, nausea, poor concentration and headaches. Over the next few years the employee was assessed on a number of occasions by OH advisors who were of the opinion his condition did not amount to a ‘disability’.

Both the tribunal and subsequently the Employment Appeal Tribunal (EAT) found that the employer was entitled to rely on the unequivocal opinions obtained from an OH advisor that the employee was not disabled.

However, the employee appealed and the Court of Appeal upheld the appeal stressing that employers should factor in the opinions of OH advisers to their decisions but must make their own judgments using that guidance. Employers should ensure that they do not simply ‘rubber stamp’ OH opinions.

This case serves as a warning to employers to factor in their own knowledge of each employee and not just to ‘rubber stamp’ the opinions of OH. It should, however, be noted that in this case the OH advice was somewhat threadbare on the issue of why the employee was not disabled. The Court of Appeal has suggested that employers should be mindful to pose practical questions to OH directed to any disability which the employer thinks could apply based on the facts available. By doing so employers will benefit from having more focused opinion from OH to assist them in deciding whether an employee meets the relevant disability criteria.

The full article summary can be found here.

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