Question: I have an employee who is on sick leave and is refusing to release their medical and occupational health reports to the business so that we can establish the nature of their illness and if they are disabled under the Equality Act. Can we make a disciplinary decision without sight of the medical records as we have nothing else to rely on? Should I try and research their condition and make an educated guess about it?
Answer: This situation has come up 3 times recently with various clients so we thought it would be a good idea to set out how you can manage this situation. You should first try and discuss with the employee why it is that they won’t release the report. You may be able to alleviate their concerns – for example, there may be medical information that isn’t related to the current situation that can be redacted first or that only certain people in the organisation will have access to the reports and that you will destroy them after they are used.
If the employee is still refusing, you should write to them and explain that by not allowing you to see the medical evidence that you require that a decision will be made on the information that you have and this may result in dismissal.
You should check the employment contract to see if there is a clause that requires the employee to supply a medical report on request. If they do, you can explain that refusing to do so is a breach of contract or misconduct.
As you are not the medical professional dealing with the employee you should not try to guess what the employee’s condition might be.
If you trying to establish if the employee is disabled and this is not now possible, as you can’t confirm this, it will be considered that you don’t have knowledge of any disability, unless of course it is abundantly clear that they are. This will make it much harder for the employee to bring a successful discrimination claim if you discipline or dismiss them and they are, in fact, disabled. However you should consider making some small adjustments.
By taking these steps you can demonstrate that you have done everything that can be expected of a reasonable employer in the circumstances and you have made your decision and taken the appropriate action given the evidence available. “Iain Lock Managing Director of Q&A Law said “By taking this approach we were able to resolve the various issues each client faced in a way that met the clients respective goals.”
