Posted By Paul Leadbetter Shane If you believe that the employee's condition is work-related, then you have a duty to investigate. The employee is under an obligation to co-operate with the employer to enable them to comply with the law. You could try reminding the employee of this obligation but you may have only limited success given his attitude so far. Persuasion might work; something along the lines of 'if your condition is not treated, you could end up untreatable!' Paul

Posted By Neil Pearson This is close to the territory covered in Coxall v Goodyear GB Ltd last year, but in that case, a works doctor advised Goodyear to remove an employee from work on health grounds and the employee wanted to continue anyway. Of course the duty to co-operate applies, but also the duty to take care of his own health & safety. It would be wise to liaise closely with the HSE Inspector. Also, from the statutory point of view, make sure you have a formal policy or procedure outlining that employees may be asked to attend an occupational health referral in such cases. This gives you something more specific that the employee has to co-operate with. In fact, as I understand it, a formal company policy is an implied term of the employment contract. I suggest following your disciplinary procedure as you say, and also prepare a risk assessment purely for this employee, which takes into account your subjective feelings about his health, even though you do not yet have a professional medical opinion. The really tricky part is when you get to the business end of your disciplinary procedure and he still doesn't co-operate. Do you dismiss the employee? Jump off that bridge when you get to it, but the case law seems to suggest that you are not under a duty to dismiss so long as no-one else is put at risk by the employee's behaviour. BUT if there is any risk posed to other employees then I believe you should dismiss, but this is fraught with uncertainty. The only way to get a fairly authoritative answer is to commission a report from a barrister. I'll be fascinated to see other peoples' takes on this case.

Posted By Paul Birney Every where that I have worked, falling asleep at work was classed as gross misconduct from both a production and a safety viewpoint. Perhaps the threat of such action may encourage the employee to be more reasonable