The Cost Of Making Assumptions

A departing employee was recently awarded £11,606.00 by a Tribunal because her employer made a costly mistake.

The employee, Ms Newcombe, had been working for Machynlleth Town Council (MTC) since May 2013. When she was approached about a contractual variation to her hours of work in November 2017, things went south during the consultation period and she was subsequently signed off sick. Presumably in accordance with the MTC’s policies, an absence review meeting was held in 2018. During said meeting, the employee explained that her absence was “caused by work related stress and this could be confirmed by her GP.”

Very often, when undertaking the capability process based on ill health and prolonged absence, employers can request a medical report from the employee’s doctor to better understand the reasons for the absence and what, if anything, can be done to facilitate a return to work.

MTC wrote to her GP stating, “We have employed her on a contract that pays her full pay during sickness absence and it is becoming well known that she abuses this by constantly being seen out in local pubs when ‘on the sick’…the only stress being generated is by her partner potentially ‘gas lighting’ her.”

These comments were problematic because MTC had evidently drawn its own conclusions about the legitimacy of her absence, but that was not the only problem. When the employee became aware of the letter, she subsequently resigned and cited that she had been constructively dismissed. The most prevalent legal issue was the fact that the employee had not provided her express consent to the GP being contacted with a view to accessing information about her health. While MTC argued that she had verbally consented in the review meeting, this argument was not upheld.

Unsurprisingly, the Tribunal ruled in favour of the employee and she was awarded a total of £11,606.00 in compensation.

When accessing an employee’s medical record and/or other health information, you must seek their written consent. While it may appear that the employee has verbally agreed, this is not going to hold up at Tribunal so it is always best to have a written record of the permission being freely given. And of course it goes without saying; always steer clear from making assumptive comments when writing to the GP or any other third party.

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