I have an employee who is out of work with lower back pain. She had a CT scan in her own country (she's a foreign national) and the report indicates 'arthritis of the facet joints'.

I have sent her to three different occupational doctors and physiotherapists and all of them have stated that her condition will not affect her ability to do her job. On that basis, I have refused to pay her under the company sick pay scheme.

The Union has taken up her case and had a meeting with the HR dept. (which I wasn't involved in), the conclusion of which was to send the employee to an orthopaedic consultant for another opinion.

My question is: how far does a company have to go to prove that an employee is fit for work?

It is obvious that without input from a consultant ( in this case an orthopaedic consultant) regarding the EXTENT of the condition (it is commonly known as osteoporosis of the spine), it is difficult to determine the ability to work based on the type/nature of work.

It depends how your occupational health doctors/pyhsitherapists came to the decision that the employee is fit for work as they are not experts in specific branches of medicine such as orthopaedics. It also depends upon whether they had credible information (with consent of the employee) from the employees GP who in turn had referred them to a consultant etc. I would also not generally consider physiotherapists as experts in orthopaedics.

A few things strike me.

You say "out of work". Can I assume you mean that she is 'in work' but off sick?
Does she have a certificate saying that she is unfit for work? If not, then I would have thought that you can reasonably assume that she is. I don't think that you can pay SSP without an appropriate FMED3, and I would argue that it would be reasonable to withhold contractual sick pay on the same basis.
Why are YOU (H&S) withholding sick pay, surely that is a decision for HR/payroll?

Just my Friday afternoon ramblings.

Just to clarify, yes the employee is 'in work' but out sick and has been for about six months now.

As per company procedure, it is common practise to investigate all sick notes esp. those which may affect an employee's ability to work. In this case, the employee's GP had stated that she was not fit to work due to back pain.

After the company had sent the employee to the company doctor who said that her back pain would not affect her ability to work, the employee went to her native country and got a CT scan done and a letter which says that she has arthritis and a recommendation for her to have surgery.

Her GP in this country has recommeded physio and painkillers but not surgery. More further meetings with occupational doctors plus physiotherapists have followed and all have come to similiar conclusions regarding work.

All parties in this country have requested that the employee seek a second opinion on the need for surgery but she is not willing to co-operate.

The union & HR meeting went ahead as they had 'forgotten' to invite me!

And sorry, I didn't mean 'me' personnally withholding the employee's sick pay, I meant 'the company'.

You must do everything reasonably practicable to ensure the health, safety and wellbeing of your people and this should be reflected in your person orientated policies and procedures.

You have already consulted professionals in their field who have advised you on the condition your worker is suffering from, and, what work duties they can reasonably be expected to undertake. If you then advise your senior management of these issues they will take reasonable action, as per your polices and procedures, in dealing with the individual concerned.

It would appear that you have fulfilled your obligations under your polices and procedures and its now a senior management decision from now on.

In my experience its not unusual for the Union to work for the best for their member, unsurprisingly.

As it seems its now agreed, between your company and the Union, that a further professional practitioner will evaluate your workers condition, and ability to carry out their duties as per their contract, the result of the next consultation should be binding and the employee will then have to submit to the findings of the consultation, and actions and decisions will then progress from there.


Hope this helps.