Too ill to work for months. "Long-term absence procedure" nearly done....dismissal around the corner. This 59 yr old man didn't think he'd work again.
HR made a promise:
"We will see if you qualify for ill-health retirement....we will pull out all the stops and get it for you if we possibly can. If we can't....really sorry but we are going to have to let you go."
The worker thought this sounded fair enough.
Unfortunately, the ill-health retirement report came back saying "NO", and the dismissal came soon after.
This worker didn't contact me until after his dismissal. As there was no prospect of a return to work, there were no grounds for appeal.
I looked at the file. Where was the report was from his GP or hospital consultant?
Turned out that HR hadn't asked for a report. The sacked man had never been asked to sign a medical consent form.
My head was spinning. Was this man's condition covered under the Equalities Act? This wasn't clear from the man's own description of his physical difficulties. I could smell a rat.
I took my concerns to the company. Why had this loyal worker not been asked for the opinion of his specialist consultant surgeon? How on earth could HR make a decision with respect to ill-health retirement without listening to the views of the health professional that best knows the person? I argued that this was morally wrong.
The honest answers given by HR really surprised me, and I'll ensure I look very closely at this issue in every company where I am the FTO.
It turns out that this has been a deliberate policy for some years. This company (who employ over 10,000 workers nationwide) never ask for medical consent and never do more than refer to see the company "doctor". In law, the company medical adviser doesn't need to be a qualified Doctor. All employers have to do is show that they have considered ill-health retirement. I am now thinking that this is probably very common - as most employers seem to use a third party to consider ill-health retirement. I don't think many employers are "pulling out the stops" to help.
This is a discriminatory policy. Workers with a disability may need special and proper consideration of circumstances so that appropriate adjustments may be considered. Of course, it is also extremely unfair to all workers. I argued that not only was this dismissal no longer safe, the policy itself was creating an ongoing risk to the business.
I have been able to negotiate a settlement agreement for this particular worker.
Better still, the company have now agreed to change it's policy so that medical consent will always be requested in the future. This means that where it may help the worker for HR to see the opinion of the GP or other medical specialist, this will happen. I have never seen a decision to award ill-health retirement without this taking place.
I'm very, very pleased. It's not often that by helping one worker, you end up changing company policy.
In this instance, workers and employers have a mutual interest for things to be done properly. Yes, an employer can save time by cutting out bothering to ask for medical consent, but to do so is not only unfair, it creates exposure to risk. An employer may believe there is no risk as the "company doctor" will advise if the worker is classed as having a disability as defined under the Equalities Act. But often the "company doctor" will hedge bets by saying that it isn't possible to say from the information available.
In other words, taking a proper look at what a workers GP or specialist has to say is best for all. It delivers the following advantages:
1. Fairer to the worker.
2. Suggested workplace adjustments from workers specialist/GP increases likelihood of earlier and/or more successful return to work - benefiting all concerned.
3. Ill-health retirement decision more likely to be the right one.
4. Reduces exposure to risk for the employer.
5. Ensuring routine request for medical consent during long term absence is likely to improve an employers ability to be consistent.
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- Section 44, ERA 1996 - very important!
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