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| Industry News |
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Occupational Health
September 2008
OCCUPATIONAL HEALTH
STRESS AND SUSPENSION
Can you suspend an employee on medical grounds if they’re stressed and refusing to co-operate over a referral to a medical advisor? If so, under what circumstances and how do you go about it?
Assessing your options
Normally, any decision to suspend an employee is due to alleged gross misconduct which you need to investigate further. But on this occasion you want to suspend on medical grounds. This is because an employee’s behaviour has become erratic and is not just affecting his work, but that of his colleagues. You have tried the “softer” approach by encouraging him to see an occupational health advisor (OHA) at your expense, but he’s refused and you now want to suspend him as a way of forcing the issue. Is this possible and if so, how can you go about it whilst limiting your exposure to unwanted legal liability?
Legal considerations
You should be aware that whilst suspension is an option, it should be the last resort. This is because there’s a risk that the employee could allege constructive dismissal (particularly as he’s already showing signs of stress). For example, he could argue that to suspend in circumstances other than gross misconduct is a breach of your implied duty to him of trust and confidence. As a result, he has no option but to treat his contract as terminated and to make a claim.
Is there hard evidence?
For these reasons, you should only consider suspension as an option where one or more of the following factors are in evidence:
• Employee wellbeing. If there’s concern for this employee’s safety or mental welfare
• Third parties. Where erratic behaviour could affect the safety of colleagues or
visitors and a job transfer is not available or practicable.
• Client relationships. If his behaviour had led to complaints or even loss of business
Dealing with the employee
However, even where these concerns exist, there is a process that you should follow. This comprises several steps.
Step 1, Meeting. You should meet with the employee to discuss their concerns. Play the caring employer and reiterate why you wish to refer him to an OHA.
Step 2. Evidence. If he denies he has a problem, you must present him with firm evidence of the impact his behaviour is having. Ask for his comments on each point and keep a note of his response. Ideally, get him to sign to confirm the accuracy of these notes.
Step 3. Co-operation. If he agrees to seek help, then he should be given some leave in line with your sickness policy to see an OHA. Any advice given can then be acted upon.
Step 4. Still unco-operative. In the unlikely event that he still refuses to seek medical help, suspension is now the only option left.
Tip 1. Advise the employee of this and confirm it in writing with your evidence. In the letter make it clear that you have been left with no choice but to suspend him pending a disciplinary hearing.
Tip 2. In future, play it safe by retaining the right to refer an employee to a medical advisor if there’s evidence that a health problem is harming your business in some way.
Suspension is the last resort. So meet with the employee and provide hard evidence of why their behaviour is causing such problems. If they still refuse to co-operate, advise them that they will be suspended pending a disciplinary hearing.
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