The right to fair procedures applies to the information that is provided to the company doctor/psychiatrist and what occurs at any subsequent interview/meeting between the doctor/psychiatrist and the company.

In a High Court case* involving a referral by an employer of an employee for psychiatric assessment Miss Justice Laffoy sets out the process that such a referral needs to follow for it to accord with fair procedures including putting the employee on notice of the basis on which the employer considered it necessary to refer the employee for assessment as to his fitness for work.

Background

In March 2006, the plaintiff, an economist at the Central Bank, brought a complaint of bullying and harassment against his employer. The investigator reported in January 2008. The bullying complaint was not upheld although certain findings were made against a number of employees of the Bank relating to inappropriate behaviour.

In October 2007, HR wrote to the Plaintiff advising him of management concerns regarding his mental health and referring him to a consultant psychiatrist for assessment. The Bank funished the consultant with certain documentation which it did not disclose to the Plaintiff.  The Plaintiff attended for assessment in December 2007. On 1 March of 2008, the consultant psychiatrist met with the Bank. Following that meeting the Bank's solicitors furnished further background documentation to the consultant psychiatrist which included a memo from two other employees named by the Plaintiff in his bullying complaint. The consultant's report issued in May 2008.

On 30 January 2008, the Plaintiff's solicitors requested the Bank to furnish it with all notes which had been sent to the consultant psychiatrist in relation to the Plaintiff. The Bank responded to say that the consultant psychiatrist was being furnished with a copy of the investigator's report but refused to furnish the Plaintiff's solicitor with the previously furnished documentation on the grounds it was subject to legal professional privilege.  The Plaintiff's solicitor wrote back requesting that the investigator's report should not be furnished to the consultant psychiatrist on the grounds that he would be influenced by irrelevant information such that his report could not be relied upon. The Bank went ahead and furnished the consultant psychiatrist with the investigator's report.

The consultant psychiatrist's report concluded that the Plaintiff suffered from a disability pursuant to the Employment Equality Acts and that his presentation was consistent with traits of a paranoid personality disorder or an emerging delusional disorder. It recommended that the Plaintiff be placed on sick leave until such time as his disability had responded to treatment.

The Bank relied on this report to refuse to let the Plaintiff return to work until he was certified fit by a doctor other than his treating doctor.

In February 2009, the Plaintiff was examined by his consultant psychiatrist. She concluded that he was fit to return to work. The Bank responded by requestiing that the Plaintiff attend for further assessment with a third psychiatrist. The Plaintiff refused and complained that the Bank was acting in breach of his employment contract.

The Plaintiff sought a declaration that the purported decision requiring him to be psychiatrically examined was infirm and that the ensuing report was a nullity on the grounds that it was formulated in breach of fair procedures.

Plaintiff's argument

As a matter of contract (a) the Bank had no authority to require him to attend a psychiatrist and (b) as a matter of contract the Plaintiff was entitled to have the process to determine his fitness for duty conducted in accordance with fair procedures.

As a matter of contract the Bank had no authority to require him to attend a psychiatrist

Laffoy J. said that the real question in this case was whether it was appropriate for an employer on the basis of legal advice, as distinct from medical advice, to refer an employee for psychiatric assessment as to his fitness to carry out his duties. She found that it was unnecessary to express a definitive view in relation to this as the Plaintiff had agreed to go for assessment having had the benefit of legal advice and could not now argue at this stage that the Bank acted without reasonable and proper cause.

As a matter of contract the Plaintiff was entitled to have the process to determine his fitness for duty conducted in accordance with fair procedures

In reliance on this argument the Plaintiff referred to the Supreme Court case of Glover v BLN Ltd 1973 and the judgment of Walsh J. in which he said that public policy and constitutional justice require that statutes, regulations and agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.

The court agreed with this and said that the decision made by the Bank not to allow the Plaintiff to return to work as a consequence of their consultant's report was a decision which affected the rights of the Plaintiff and the process that led to that decision, in particular the formation of his opinion on which the Bank relied, required to be conducted in accordance with fair procedures.

In this case the principles of not being a judge in one's own cause and bias were infringed because of the failure of the Bank to appraise the Plaintiff of the documentation furnished and by furnishing the consultant psychiatrist with notes prepared by one of the employees described as a protagonist in the bullying case.

* John Delaney v Central Bank of Ireland, Judgment of Justice Laffoy, delivered 15 April 2011