Sickness certification: looking behind GPs' certificates

Gillian Howard asks whether Med 3 forms are worth the paper they are written on.

Q An employer that I advise believes that, if an employee sends in a Med 3 statement, the employer cannot challenge that employee as to whether they are fit to attend or carry out any work and that, therefore, the company has no alternative but to pay sick pay. Is this correct?

A No. As stated at the top of the Med 3 form (medical statement - commonly called a medical certificate), it is "for social security and statutory sick pay purposes only". An employer is entitled to ask for other, or additional, medical evidence of personal incapacity for work, before paying occupational sick pay (OSP).

Occupational sick pay

Contracts of employment commonly include either a contractual or discretionary provision for OSP at either full or half pay for a certain amount of time off for illness or injury. If the contract is silent, there is an implied term (which this casebook will not cover).

An employer has no statutory obligation to pay an employee any OSP during sickness absence. The only statutory obligation on the employer in terms of sick pay relates to statutory sick pay (SSP).

Medical evidence

For the purposes of SSP, an employer may ask for medical certification (Med 3) after seven calendar days of sickness absence; employees are entitled to self-certify for the first seven days.

However, the Employer's help book¹ merely states that employers must tell their staff what medical evidence they are required to produce. While it states that "a doctor's statement is strong evidence of incapacity and should usually be accepted as conclusive, unless there is very strong evidence to the contrary", this does not apply to the payment of OSP (nor necessarily to SSP). The Employer's help book makes it clear that the information it provides is to be treated as "general guidance only and should not be treated as a complete and authoritative statement of the law".

The Med 3 specifies that the doctor has advised the patient to refrain from work because of "reported" symptoms. Employers sometimes forget that the essential relationship is between the GP and the patient, and not with the employer. If the patient informs their doctor that they do not feel well enough to attend work for the next week or so, it is not surprising that most GPs will issue a Med 3.

However, the GP may not have explored in any detail the nature of the patient's employment or the extent or difficulty of the tasks involved, eg whether the role is sedentary, involves driving, requires special concentration or poses any health and safety risks. As a result, the GP will not necessarily be in the best position to judge whether the illness or injury prevents the patient from doing any type of work.

In addition, in many cases, the GP will have relied on the patient's description of their symptoms and will not have carried out an in-depth examination. The GP will then write a record of the reported symptoms on the Med 3. In some cases, the GP will agree with the patient to write something that does not accurately describe the symptoms for reasons of confidentiality or for other good reasons. Employers should not expect accurate diagnoses on Med 3 statements. The entire consultation may have lasted no longer than 10 minutes.

The GP must examine the patient on the day, or the day before, the Med 3 statement is issued; backdated Med 3 statements are illegal.

There are two types of Med 3 statements: an open certificate and a closed certificate. An open certificate is issued where a period of expected incapacity can be given in the "for" section (eg "for one week") but where there is no specific date for return to work. During the first six months of incapacity, a certificate can be issued for a period of up to six months from the date of the examination, where this is clinically justified. Certificates issued after the first six months of incapacity can be for any clinically appropriate period up to "indefinite". A closed certificate is issued where a specific date for return to work is given in the "until" section (eg "until 4 April 2002"). This specific date may be up to 14 days after the date the statement is issued.

DWP advice

In A guide to registered medical practitioners², the Department for Work and Pensions (DWP) advises doctors to "consider carefully whether advice to refrain from work represents the most appropriate clinical management. Doctors can often best help a patient of working age by taking action which will encourage and support work retention and rehabilitation … a patient may not be well served in the longer term by medical advice to refrain from work".

Further, it identifies early intervention by experts and clinical management of the condition, bearing in mind any reasonable adjustments that could be made in the case of an employee with a longer-term medical condition, as important factors in successful rehabilitation to work or enabling the patient to continue working.

Unfit for what?

SSP can only be paid where, because of illness or injury, an employee is prevented from doing any work that it is reasonable to expect that employee to do. In other words, SSP is not paid simply because an employee is ill or injured; it is only to be paid where the employee is prevented by reason of a personal illness or injury from doing any work that it would be reasonable to expect that employee to undertake.

The Social Security Contributions and Benefits Act 1992 (as amended by the Social Security (Incapacity for Work) Act 1994) sets out the definition of incapacity for work in terms of the "own-occupation" test and the "all-work" test.

The own-occupation test is whether an employee is incapable by reason of some specific disease or bodily or mental disablement of doing work that they could reasonably be expected to do in the course of the occupation in which they were so engaged.

The all-work test is defined by reference to the extent of an employee's incapacity by reason of some specific disease or bodily or mental disablement to perform such activities as may be reasonable or prescribed in the legislation. Employers may wish to use an all-work test before paying OSP. This would mean that "light duties", alternative duties, reduced duties or any other duties, such as working from home, could be suggested as an alternative to remaining off sick on full pay performing no duties.

Case law suggests that this is not an unreasonable option. In Marshall v Alexander Sloan & Co Ltd³ the Employment Appeal Tribunal (EAT) held that not all duties under the contract of employment are suspended when an employee is off sick - only those that the illness or injury prevents them from doing.

Conflicting medical opinions

In some cases, a GP's opinion or advice may differ from that of the occupational health physician. For example, if on review of the employee by an occupational health physician, the employee's functional capacity and functional limitations are such that they are able to perform some or all of their duties, as assessed by the occupational health physician, the occupational health physician's opinion may be preferred over that of the GP. It is essential that the OSP scheme covers this point and the contract or staff handbook should make this point clear. If it does not, and sick pay is withheld, the employer may be held in breach of contract, or liable for making an unlawful deduction from wages where the illness or injury is genuine and is certified by a Med 3 statement.

In Guthrie v Scottish Courage Ltd⁴ the employer had not made any contractual provision for the withholding of sick pay in such a case and a claim for sick pay was upheld. Mr Guthrie's GP had issued him with a Med 3 form but the employer's medical adviser said that Mr Guthrie was fit to return to work. Neither medical adviser had suggested that his sickness was not genuine. The employer's sick pay policy provided that: "Employees who are absent from work as a result of genuine illness and who fulfil all the requirements of the scheme rules will be eligible for [sick pay]" and that "payment for sickness absence is conditional upon all appropriate procedures being followed and on management being satisfied that the sickness absence is genuine". Mr Guthrie had followed the relevant procedures and, in the past, the company had always paid sick pay where employees produced medical certificates from their GPs. In addition, the company agreed that Mr Guthrie did not have a bad sickness record.

Mr Guthrie claimed that an unlawful deduction had been made from his wages. He won at tribunal and on appeal. The EAT held that the tribunal was entitled to test whether the employer reached its decision in good faith. The decision to withhold sick pay was perverse, in that it was a decision that no reasonable employer could have reached on the evidence before it, consistent with the implied term of trust and confidence. Mr Guthrie was certified sick by his GP and, although the employer's medical adviser differed as to when Mr Guthrie could return to work, they both agreed that his illness was genuine.

Clause in sick pay scheme

Typical wording that could be included in a contract of employment to ensure that the above situation is not repeated is as follows:

"While Med 3 (medical statements) will normally be accepted as evidence of incapacity for work, they are not conclusive evidence that the employee cannot undertake any reasonable duties. The company only pays sick pay where the employee is personally incapacitated from doing any work that it would be reasonable (in the circumstances of the incapacity) to expect the employee to undertake.

"The company may, in an appropriate case, ask the employee to agree to an assessment/medical review by the occupational health physician either at the occupational health physician's office or at a home visit by the occupational health physician. If the occupational health physician assesses the functional capacity and functional limitation as such that a limited range of, or restricted, duties can be undertaken either at work or at home, this will be explained to the employee and a work plan agreed. No sick pay will be paid. Normal remuneration will be paid and the period of time during which these restricted duties are undertaken will be identified as rehabilitation and not sick leave.

"The fact that an employee has followed the normal notification and medical evidence requirements and has a genuine illness or injury does not automatically entitle him/her to take sick leave on full pay. In any particular case, we may require an employee to undergo a fitness test/assessment by the occupational health physician and/or specialist of our choice to determine the extent of the illness or injury and its impact on the employee's ability to do his/her job or any other reasonable duties either on a reduced-hours or restricted basis, whether at home or at a company premises."

Third opinions

As long as the occupational health physician has examined the employee and has not relied solely on medical records and notes, there would be no need for an employer to seek a third opinion.

Employers would only be wise to seek a third, specialist opinion in cases where:

Where the employee, with good reason, seeks to present a third expert opinion, in order to challenge the occupational health physician, the employer should consider this report before making any final decisions.

Where the employer's own medical adviser suggests a third medical opinion - from a specialist - it is essential that the employer obtains this and considers the advice given. This is illustrated by British Gas plc v Breeze (unreported), where, since this was not done, a dismissal was judged to have been unfair.

By contrast, in Liverpool Area Health Authority v Edwards⁵, the EAT held that employers are not under a duty to evaluate medical evidence obtained by them, unless it is plainly inaccurate or based on inadequate investigation, but they should give the employee a reasonable chance, if requested, to challenge the employers' medical evidence with their own.

Challenging a Med 3

The employer does not challenge the GP's "diagnosis" when not accepting a Med 3 for the sick pay scheme. The challenge is rather that the employee may be seen doing something that appears to be incompatible with their stated medical condition and their alleged unfitness for work.

Employers are entitled to "look behind" medical certificates. In Hutchinson v Enfield Rolling Mills Ltd (unreported) Mr Hutchinson had been issued a Med 3 for sciatica, but was seen marching on a TUC rally carrying a heavy union banner. His employer refused to pay him sick pay and the EAT agreed that the employer was "entitled to look behind" the Med 3 to determine whether they would authorise the absence and pay for it.

References

1. Inland Revenue (2005). Employer's help book E14 (2005): what to do if your employee is sick, available from www.inlandrevenue.gov.uk .

2. IB 204 A guide for registered medical practitioners, revised August 2004.

3. [1981] IRLR 264.

4. [2004] All ER (D) 15 (Jun).

5. [1977] IRLR 471.