Sickness absence in the workplace, particularly where it is recurrent or long term, has a significant impact on employers. It is for that reason that employers will often seek to send employees to an occupational physician or specialist for assessment of their fitness to work.

The decision of Laffoy J in the case of Delaney v Central Bank of Ireland [2011] IEHC 212 has highlighted the need to follow fair procedures in referring an employee for assessment in this context. It is important that employers appreciate the distinction in this regard between the obligation which arises when sending an employee for a medical assessment to establish fitness to work and when sending an employee for medical assessment where they have initiated personal injuries proceedings against the employer. In the former case, the report and the briefing to the doctor is unlikely to be subject to privilege.

Facts

In the Delaney case, the Plaintiff, who had made a complaint against colleagues for bullying which was not upheld, was sent to a consultant psychiatrist for medical assessment by the Bank arising out of its concerns for the Plaintiff ’s mental health. The Bank’s psychiatrist, Dr. Mohan, found that the Plaintiff was not fit for work. Although the Plaintiff ’s psychiatrist’s (Dr. Lane) opinion differed, the Bank would not permit the employee to return to work and as a compromise requested the Plaintiff to attend for further assessment by a third psychiatrist.

The Plaintiff took a claim to the High Court for breach of contract, including a breach of the implied duty of trust and confidence and a breach of the Plaintiff ’s right to earn a livelihood. The alleged wrongdoings committed by the Bank included amongst other things, excluding the Plaintiff from the workforce on the basis of Dr. Mohan’s report without allowing him the opportunity to rebut its contents and despite the Plaintiff ’s doctor’s opinion that he was fit for work, improperly seeking to influence Dr. Mohan in the compilation of his report, failing to furnish information to the Plaintiff which was furnished to Dr. Mohan and allowing persons against whom complaints had been made by the Plaintiff to make decisions regarding the referral of the Plaintiff to Dr. Mohan.

The Bank’s defence was that it had acted fairly, properly and reasonably as a responsible employer would act and that it was fully entitled to take the actions that it took. The Plaintiff ’s contract of employment provided that the Bank could at its discretion refer any member of staff to its Medical Advisor.

High Court Ruling

The Court held that the Bank was in breach of fair procedures in failing to furnish the Plaintiff with all documentation provided by way of brief to the consultant psychiatrist and by providing the psychiatrist with notes prepared by the employee who was referred to as the protagonist in the bullying case. Further, the Court held that “the source of the material was infected by a real likelihood of partiality or bias”. The decision made by the Bank not to allow the Plaintiff to return to work affected the Plaintiff ’s rights and therefore, the process leading to this decision ought to have been conducted in accordance with fair procedures.

The Court made no ruling on the entitlement of the Bank to send the Plaintiff for assessment for fitness to work to Dr. Mohan (on the basis of legal advice as opposed to medical advice). This was on the basis that the Plaintiff, with the benefit of independent legal advice, had agreed to attend Dr. Mohan and this, in the Court’s view, precluded the Plaintiff from contending that the Bank acted without reasonable and proper cause.

Guidance

  • Ensure the company’s policies are clear and unequivocal in relation to the entitlement to send an employee for fitness to work medicals, either to an occupational doctor or a psychiatrist and that the employee gives their written consent to same and to the company’s medical practitioner liaising with the employee’s doctor.
  • Decide in advance the reason for sending an employee for medical assessment:-
  1. fitness to work assessment;
  2. to assess injuries in the context of PI proceedings; or
  3. both.
  • If the assessment is for i) fitness to work assessment, ensure that the brief to the company medical practitioner is impartial and simply states the facts and instructions to the doctor and share the brief and the report with the employee to ensure compliance with fair procedures. Ensure that all communication with the company doctor is shared with the employee and would not be subject to a claim of bias. If the employer’s doctor’s opinion differs to the employee’s doctor, the employer should consider whether it is appropriate to appoint a third doctor (agreed between the parties) to conduct an assessment or whether the company doctor and the employee’s doctor can arrive at a mutually agreeable position after consultation.
  • If the assessment is for ii) to assess injuries in the context of PI proceedings, the employer can claim privilege over the brief to the doctor as long as the correspondence is for the dominant purpose of actual or contemplated litigation.
  • If the assessment is for iii) both a fitness to work assessment and to assess injuries in the context of personal injuries proceedings, the employer should proceed with care as it will be difficult to assess what is the “dominant purpose” in the context of privilege. The employer may wish to consider issuing the doctor with two separate briefs and asking for separate reports for the fitness to work assessment and for the PI claim or the employer may wish to consider briefing two separate doctors so that the privileged material can be separated.