Ethics Guidance for Occupational Health Practice 9th Edition - Book - Page 83
4.61. Occupational health professionals have a duty to provide realistic estimates
based on sound evidence – undue optimism or pessimism is inappropriate and
can cause adverse outcomes for the worker and/or the employer. Poor
performance may have a health component and, again, a realistic estimate of
the contribution made by ill health and the future outlook is required.
4.62. In disciplinary cases, health status may prove to be a defence or mitigation.
However, objectivity by the occupational health professional is critical. They are
neither the advocate of the worker, nor the servant of the employer. Accurate
medical evidence is essential, its potential impact understood, and its temporal
relation to the alleged offence is important. Impaired mental health is common
in discipline cases, but often relates to the process and potential penalty, rather
than being a pre-existing condition that may or may not have influenced the
conduct in question.
4.63. It is often the case that a worker who is accused of misconduct or incapability
and is made subject to a disciplinary procedure by their manager, will go off
sick certified by their GP/healthcare professional as suffering from stress, and
will refuse to attend investigation and disciplinary meetings on the grounds that
they are medically unfit to do so. The Employment Rights Act 1996 and advice
from the Advisory, Conciliation and Arbitration Service (ACAS), state as a
general rule it is unfair to penalise a worker without a proper investigation and
meeting at which the worker is able to put their side of the case, accompanied
if they wish by a colleague or trade union representative. An occupational health
professional may be requested to assess whether the worker is fit to attend.
4.64. The Pritchard criteria, originating from criminal law, are used to assess whether
a person is fit to plead in a criminal court. Whilst these criteria are robust in a
legal context, they are not ideally suited for assessing fitness to attend formal
meetings with an employer. They do not reflect the nature of employment
relationships, nor do they consider the emotional and psychological impact of
disciplinary proceedings on the individual.
4.65. In the occupational health context, a more appropriate and clinically relevant
approach is to consider the worker’s mental capacity in relation to the specific
decision or meeting. The key issues are whether the worker is capable of
understanding the case against them and of replying to the charges, either in
person or by instructing a representative.
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