Fitness to attend capability and disciplinary meetings

In December 2012 The Faculty of Occupational Medicine of
the Royal College of Physicians issued updated “Ethics Guidance for Occupational Health Practice” (1)

This provides guidance to occupational health practitioners in matters that are very relevant to employers and employees alike.

Accordingly, this month’s newsletter looks at the question of fitness to attend meetings with the employer when an employee is off work sick or appears in a state of distress.

A typical scenario is where an employee feels “wronged” by the employer or is undergoing investigation for possible disciplinary or capability issues. The employee then goes off sick. Most often (in our
experience) the Fit Note will show “anxiety” “Depression” or “work-related stress”. Occasionally a more serious sounding condition will be on the Doctor’s note such as “Acute anxiety reaction”.

It is quite common in these situations for an employee to refuse direct contact with the employer. It is also usual for a family member or friend to “protect” the employee from any dealings with the employer.

The reasons for this are often entirely understandable. The individual may feel very unwell and maybe having a strong “flight” reaction. They may feel angry, upset and picked upon. It can be very worrying
for family and friends when someone appears to be so unwell.

In these circumstances, any contact from the employer can appear like bullying and harassment.

In addition, from the employer’s perspective, it is likely that by not keeping in contact the employee is acting outside of their expected
behaviours and this can be very frustrating.

Often a stalemate can result where the employee remains signed off with a progressively worsening condition which makes a return to
work less and less likely. The employer is then left in “limbo” not knowing how to proceed and also with a resourcing problem.

In such circumstances, we advise that employers act very quickly indeed. It is a known fact that the longer someone remains off work the less likely a full return is possible. It is also likely that the employee’s condition may deteriorate from for example a “reactive” anxiety to a more entrenched mental health condition.

In the vast majority of cases, the GP is making a responsible decision on behalf of their patient. Until any situation has been dealt with it is very likely a return to work will make the employee’s condition worse.

It is also important that employers understand that although the person is unwell the solution to the unwellness is unlikely to be
any medical treatment. The person may be prescribed medication and therapy to help them deal with their illness BUT until the situation regarding work changes, they are highly unlikely to get better.

Therefore it is crucial that the employer and employee meet to be able to move matters along. Until they are able to engage nothing is likely to change except a likely worsening of the employee’s condition and
increased frustration on behalf of the employer!

This brings us to the question of fitness to attend meetings. As the individual has a condition that impacts directly on work the first step should be to seek advice from occupational health.

In a moment we will look at the referral and process but first it will be helpful to consider what factors the Occupational Health Professionals
will consider when advising on fitness to attend meetings.

The Guidelines are very clear indeed and state: ” The occupational health professional who is requested to assess whether the worker
is fit to attend must ask whether he is capable of understanding the case against him and of replying to the charges, either in person or by instructing a representative. If not, he is unfit, but these cases will be rare. It will often be the case that the worker will find the proceedings distressing, but that delaying the process for a prolonged period will be likely to be more damaging to his health, especially his mental health, than continuing with it.” 2

At OHC we can only think of a handful of cases where it was not advisable for the employee to attend meetings. In the majority, it was
because the employee in our opinion was not capable at the time of consenting or understanding the procedure as they were in conditions that impaired their judgement.

In all others, we have advised that attendance OR continuing without the individual will be better for the individual’s health in the longer term. The Guidance is also explicit that in addition to consideration of the workers’ health they also need to consider the “…. Need of the employer to reach a conclusion in the interest of the organisation and the other workers”.

The referral to Occupational Health

In the case of a management referral to assess
suitability to attend a meeting it is essential that the employer asks the

  • Is the employee fit to attend a meeting?
  • Are they capable of understanding the proceedings?
  • Will it be detrimental to the employee’s health to attend a meeting?
  • Can Occupational Health provide any guidance as to how best to proceed with the meeting recommend to make it easier for the employee to attend and be supported?

The employee needs to see the content of the referral prior to any consultation. It may be sensible to write to them with a proposed
time and date for the OH consultation and ask them to contact occupational health directly to confirm.

We have found that in general employees prefer to attend consultation away from their place of work.

There may be a case for incurring the extra expense of a home visit by Occupational Health if the employee does not feel able to travel to an appointment.

We also can provide a letter to the employee with reassurance about our impartiality and medical credentials. Sometimes one of our advisers can make a call to the employee to allay any fears they might

Pragmatism versus Protocols:

Our experience has led us to believe that the more flexible an employer can be regarding location and support available at such meetings, the more likely employees are to attend.

If the employer has been as flexible as they can be and if Occupational Health are clear that the individual is well enough to attend such a meeting, with no detriment to their health and the employee still refuses to engage the Guidelines state: “The ACAS guide accepts that a meeting may eventually be held in the worker’s absence if all reasonable attempts to facilitate attendance have failed”. 3


  • Usually, people are fit to attend meetings.
  • It is usually better for them to do so.
  • Refer to Occupational Health.
  • Be pragmatic in setting up meetings.

If you have any questions about this newsletter or any
other Occupational Health Issues please do not hesitate to call us on 02380 475000

1.Faculty Of Occupational Medicine of the Royal College of Physicians (2012). Ethics Guidance For Occupational Health Practice. London: Faculty of Occupational Medicine of the Royal College of Physicians. 57.

2.IBID P 57

3. IIBID P 58

As Occupational Health providers, we help ensure that you and your employees are compliant with our health surveillance and safety critical medicals.

Call us today and take the first step to a safer work environment.